Maqsoudi v Strategy One Human Resources Pty Ltd
[2016] VCC 1610
•24 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05416
| SAMAD MAQSOUDI | Plaintiff |
| v | |
| STRATEGY ONE HUMAN RESOURCES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2016 | |
DATE OF JUDGMENT: | 24 November 2016 | |
CASE MAY BE CITED AS: | Maqsoudi v Strategy One Human Resources Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1610 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury– injury to the lumbar spine – pain and suffering – loss of earning capacity – L2 compression fracture – insertion of plate and screws
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Elias-Mikre v Royal Melbourne Hospital [2013] VCC 1860; Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr James Mighell QC Ms Brooke Hutchins | Zaparas Lawyers |
| For the Defendant | Ms Michelle Britbart Mr Paul Bourke | Lander and Rogers |
HER HONOUR:
Preliminary
1 The plaintiff worked as a metal cleaner at a steel production factory in Dandenong. On 7 October 2011, the plaintiff was lifting a boat trailer when he suffered lower back pain. Several hours later, he experienced further back pain when lifting a large metal sheet with a co-worker. The plaintiff claims that as a consequence of this heavy lifting, he suffered a lower back injury (“October 2011 injury”).
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity. The body function said to be impaired is the functioning of his spine.
3Mr J Mighell QC and Ms B Hutchins of counsel appeared for the plaintiff and Ms M Britbart QC and Mr P Bourke of counsel appeared for the defendant.
4Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my Judgment.
Relevant background
1.The plaintiff is 38 years of age and lives with his wife and four children, who are aged between 8 and 18 years old.
2.The plaintiff was born in Afghanistan, where he attended school until 13 or 14 years of age. He said he did not do very well at school, and that he can only read and write a little in his native language of Dari.[1] After finishing school, the plaintiff worked in a shop, selling car parts.
[1]Transcript (“T”) 14, Line(s) (“L”) 20–21
3.In 2001, the plaintiff came to Australia alone, as a refugee. His wife and three eldest children remained in a camp in Pakistan, but ultimately moved here in 2006, when the plaintiff obtained permanent residency.[2] The plaintiff’s youngest child was then subsequently born in Australia.
[2]T17, L25–28
4.After arriving in Melbourne, the plaintiff said that he initially lived in a caravan park in Springvale, where he met up with other Afghans who were able to arrange work for him. He worked at several places, including as a cleaner, in a chicken-boning factory, and in two different plastics factories. He said there were other Dari speaking employees at these workplaces, and that he was able to obtain simple instructions from English speaking supervisors, as the jobs at these factories involved the performance of basic tasks.[3]
[3]T17, L13–24
5.In 2003, the plaintiff suffered what he described as a relatively mild back injury, which was muscular in nature, and resolved within approximately one week. He had no ongoing problems with his lower back after that.[4]
[4]Plaintiff’s Court Book (“PCB”), page 2
6.In 2006, the plaintiff ceased working at a plastic factory in Dandenong, in order to travel to Pakistan to bring his family to Australia. Within three or four days of returning to Melbourne, an Afghan friend arranged for the plaintiff to obtain employment with the defendant, at a production plant operated by GB Galvanizing in Dandenong.[5] His job involved cleaning stains from machines and pieces of steel, which ranged in size and weight.[6]
[5]T18, L5-12
[6]PCB 2
7.The plaintiff said that prior to the October 2011 injury, he was an active person who enjoyed playing soccer and going jogging.[7]
[7]PCB 6
The Injury and its consequences
8.The plaintiff claims that on 7 October 2011, he suffered injury to his lower back when moving a metal boat-trailer frame with another worker. The plaintiff said that whilst he was lifting this trailer off the ground, he felt a sudden pain in his lower back and buttocks.[8] The plaintiff continued working, but two hours later he experienced further pain when lifting a sheet of metal weighing approximately 40–50 kilograms.[9]
[8]PCB 3
[9]PCB 3
9.On 17 October 2011, the plaintiff attended general practitioner, Dr Anthony Chan, who certified the plaintiff to have five days off work and referred him for an x‑ray.[10] On 19 October 2011, an x‑ray was taken of the plaintiff’s lumbar spine and pelvis, which did not demonstrate anything of note.[11]
[10]PCB 4
[11]PCB 115
10.On 24 October 2011, the plaintiff returned to work on light duties. He was restricted to lifting no more than five kilograms and was to avoid bending and twisting, and prolonged standing.[12]
[12]PCB 4
11.On 28 October 2011, the plaintiff attended the Southern Cross Medical Centre. He was initially seen by general practitioner, Dr Rukmi Seneviratne, and subsequently by Dr Paul Sandhu. The plaintiff was referred for physiotherapy, which he received at Hampton Park Spinal and Sports Physiotherapy Clinic. Dr Sandhu prescribed oral analgesics including Panadeine Forte, Tramadol and Endep.[13]
[13]PCB 138, 140, 142
12.On 2 November 2011, an MRI scan was taken of the plaintiff’s lumbar spine. It demonstrated a small focal central/right paracentral disc protrusion at L5/S1, with mild contact of the descending right S1 nerve root.[14]
[14]PCB 113–114
13.In February 2012, the plaintiff was referred by Dr Sandhu to rheumatologist, Dr Mark Patrick, who diagnosed the plaintiff as suffering mechanical back pains with a muscular component.[15]
[15]PCB 47
14.On 26 March 2012, the plaintiff was referred by Dr Sandhu to neurosurgeon, Mr Craig Timms, who diagnosed a lumbar L5-S1 disc injury, which he related to the lifting the plaintiff had performed at work in October 2011.[16] Mr Timms did not propose surgery, but instead recommended prolonged courses of physiotherapy, hydrotherapy, massage and Pilates, as well as oral analgesic medication.[17]
[16]PCB 64
[17]PCB 65
15.Mr Timms recommended that the plaintiff remain at work on light duties, but noted that he would be unable to return to his pre-injury duties of repetitive heavy lifting. Mr Timms considered the plaintiff was likely to have chronic back pain and sciatica.[18]
[18]PCB 65
16.On 20 July 2012, the plaintiff reported to Dr Sandhu that he had attended a Pilates class. However, due to his limited understanding of English, the plaintiff was unable to fully participate, and so instead did regular swimming.[19]
[19]PCB 135
17.On 17 August 2012, the plaintiff reported to Dr Sandhu that he had been lifting weights of 10–12 kilograms, and that he had subsequently experienced a worsening of his back pain with radiation into his legs.[20]
[20]PCB 135
18.On 13 November 2012, Dr Sandhu referred the plaintiff to pain-management specialist, Dr Clayton Thomas. He diagnosed the plaintiff as suffering mild, non-specific lower back pain, the genesis of which he considered could have been the annular tear and/or disc bulge demonstrated on the MRI scan of November 2011. Dr Thomas noted that the plaintiff remained at work on light duties, and that in a “boom-bust pattern”[21] the plaintiff would get worse in the afternoon and then rest. Dr Thomas recommended that the plaintiff be assessed for a pain-management program.
[21]PCB 62
19.On 8 January 2013, the plaintiff was assessed by the Victorian Rehabilitation Centre. It was noted that the plaintiff was working light duties, which involved lifting up to 4–5 kilograms and lifting above shoulder, to waist, and to below waist heights.[22] It was noted that when at work, the plaintiff would rest for five minutes at a time using a chair. It was also noted that the plaintiff was keen to remain at work, and that he hoped a pain-management program would help him to “do better”[23] at work and home.
[22]PCB 38
[23]PCB 38
20.The report noted the following aggravating factors:
·bending;
·lifting;
·stooping;
·sitting for five minutes, increased left-sided back pain;
·standing for one hour;
·driving – does not normally drive for more than 15–20 minutes.[24]
[24]PCB 41
21.It was noted that the plaintiff went to his local pool five to six times per week, in an attempt to walk and swim in the water, and that he did a home exercise program for 15 minutes every second day.[25] It was also noted that the plaintiff would experience flare-ups of pain, five to six times per day at work.[26]
[25]PCB 41
[26]PCB 41
22.The report also referred to the plaintiff’s sleep, and stated that he suffered disturbed sleep.[27] Elsewhere, however, it stated that he was sleeping eight hours per night, and that he was able to sleep in any position.[28]
[27]PCB 41
[28]PCB 43
23.Although a formal pain-management program was recommended, the plaintiff never underwent this, as he said it was never approved. He said that while he asked his employer several times, he was told they would get back to him, but never did. [29]
[29]T22, L1-12, T23, L8-17
24.The plaintiff continued to attend Dr Sandhu on a regular basis, with complaints of fluctuating lower back pain.[30] On 27 February 2014, he complained of ongoing lower back pain, which was radiating into the thoracic spine. Dr Sandhu noted that the plaintiff was attending the hydrotherapy pool daily, which provided him some assistance, and that he obtained pain relief from Endep medication.[31]
[30]PCB 125–142
[31]PCB 127
25.On 11 March 2014, an x‑ray was taken of the plaintiff’s thoracic spine, which was reported as normal. An MRI scan was also taken of the plaintiff’s lumbar spine, which was reported as unchanged from the prior study, in that a small focal disc protrusion was still evident at L5/S1, contacting the descending right S1 nerve root.[32]
[32]PCB 111
26.On 17 March 2014, the plaintiff attended Dr Sandhu, who noted that the plaintiff’s ongoing pains were worse, and that he experienced pain into his right lower leg most of the time.[33] Dr Sandhu discussed with the plaintiff the possibility of increasing his lifting limit to 7.5 kilograms, which the plaintiff decided against, as he could “barely cope with a 5‑kilograms limit”.[34]
[33]PCB 127
[34]PCB 127
27.On 29 April 2014, the plaintiff was advised that modified duties were no longer available and his employment was terminated.[35]
[35]PCB 4
28.In the two and a half years since the October 2011 injury, the plaintiff had remained on light duties and had worked 38 hours a week. He said that he had considerable flexibility in his work during that period, such that he could sit and stand as needed. The plaintiff also said that he would need to lie down at least twice a day, to do exercises to alleviate his pain,[36] and that he could work at his own pace, as there was not a great deal of work for him to do.[37]
[36]T34, L5-24
[37]T30, L1-9
29.On 4 June 2014, the plaintiff commenced seeing general practitioner, Dr D’Argent, at the Hallam Medical Group. She obtained a history of the October 2011 injury and noted that the plaintiff had recently ceased working light duties. Dr D’Argent referred the plaintiff to a mental health nurse and prescribed Lyrica, 75 mg twice daily.[38]
[38]Defendant’s Court Book (“DCB”) 69–70
30.Dr D’Argent noted that by 10 July 2014, since taking Lyrica, the plaintiff had reported a 50 per cent improvement in his pain, and that by 9 October 2014, she noted his condition had improved by 60 per cent.[39]
[39]DCB 70–71
31.In cross-examination, the plaintiff acknowledged that while he obtained some improvement from the Lyrica, his pain levels fluctuated, and that, at other times his pain would be greater.[40]
[40]T 24, L 26-31, T 25, 26
32.On 11 July 2014, Dr D’Argent referred the plaintiff to neurosurgeon, Professor Richard Bittar. He diagnosed the plaintiff as suffering symptoms related to an L5-S1 intervertebral disc prolapse, and considered the October 2011 work incident to be the dominant contributing factor.
33.On 24 September 2014, Professor Bittar again reviewed the plaintiff and noted that he had significantly improved. Professor Bittar considered the plaintiff had the capacity to work in a very sedentary role part-time, and that his restrictions should include the avoidance of repetitive bending or twisting, prolonged sitting or standing, and heavy lifting.[41] He then considered that the plaintiff could “gradually increase his hours and activities as tolerated.”[42]
[41]PCB 73
[42]PCB 73
34.The plaintiff’s solicitors obtained a supplementary report from Professor Bittar in October 2016, but, given he had not reviewed the plaintiff for two years, I gained no assistance from his further opinion.[43]
[43]PCB 74–78
35.In 2015, the plaintiff commenced an English course, which he was required to attend 20 hours per week, with four-hour classes, five days per week.[44] The plaintiff had difficulty undertaking this course, as he suffered increased pain when sitting for over 20 minutes.[45] However, the plaintiff ultimately completed the course, before then completing a second course in 2016. Despite having undertaken these two courses, the plaintiff is not able to read or write in English,[46] and his understanding remains limited to basic questions pertaining to his name and phone number. The plaintiff also said that he had no experience using computers in Australia.[47]
[44]PCB 6
[45]DCB 72 and PCB 6
[46]T14, L23-25
[47]T14, L22
36.The plaintiff said that he received benefits from Centrelink, for which he is encouraged to apply for work.[48] The plaintiff said that he has asked some Afghan friends about the possibility of obtaining work but that, due to his back injury, they just laugh him off.[49] The plaintiff then explained why he considered he would be restricted in his ability to work:
[48]T31, L7-10
[49]T30, L25-31, T31, L1-6
“Q: Do you think if a job like that existed, you'd be able to do it
now?---At this stage Centrelink is sending me to places to
search for a job. I go. If I find a job that I can do, I
will do, but I don't see the capacity in me anymore.
Q. Mr Maqsoudi, I suggest that you have decided that because of
your back injury, you can't work. No matter what any
doctor says to you or what suggestion is made to you, you
have decided that you can't work?---I haven't decided that,
but through my experience working, I know as a fact that
when I twist and bend and turn, that aggravates my pain, so
therefore - that is why I say I don't have the capacity.
At the moment I'm not working and I'm experiencing a lot of
problem. Imagine if I was working. Do you think my
problems get more or less?
Q: I suggest that you've still got the capacity to do light work,
just like you had up until April 2014?---It is my body and
when I bend myself or twist myself, my pain gets really
bad. That's why I say I don't have the capacity and it is
my body and I understand it, you don't.
Q: And I suggest that you have made no genuine attempt to look for
work since April 2014?---The only time I've tried it is
through Centrelink, as I explained, but as far as I'm
concerned, I know I don't have the capacity. As I said,
when I bend myself, I twist and turn, that aggravates my
pain and that's why I come up with the conclusion if I have
a job, you know, I would not be lasting even couple of
hours.
Q: And you disagree then with your GP, Dr D'Argent, who says that
you are able to do work where you lift less than 5
kilos?---I don't agree or disagree with my doctor. All I
could tell you is when I bend myself, I turn and twist
couple of time, then my pain gets really worse and as a
result I've started problem with my blood pressure
recently. I am suffering a lot of economical problems. I
always worry about my future, what is going to happen to me
and the future of my kids. I don't have any income, just
Centrelink. Of course I want to work if I could.”[50]
[50]T31, L7-31, T32, L1-12
37.The plaintiff continues to attend Dr D’Argent, who provides certificates of capacity, consistent with that initially certified by Dr Sandhu; that is, lifting of no more than five kilograms, no prolonged standing, no bending, no twisting, and a five minute break every hour for stretching.[51] These certificates do not express a restriction on the hours the plaintiff has a capacity to work but, in her two medical reports dated 18 June 2015 and 19 October 2016, Dr D’Argent stated that the plaintiff could, at most, do very light duties on a part-time basis.[52] In both of her reports, Dr D’Argent referred to the opinion of Professor Bittar, who had previously stated that the plaintiff could return to very light duties on a part-time basis.
[51]DCB 77
[52]PCB 70–70B
38.The plaintiff currently takes Lyrica 75 milligrams, two per day; APO‑duloxetine 75 milligrams, once per day; Codapane Forte, 500 milligrams paracetamol and 30 milligrams codeine phosphate, two per day; Panadeine, 500 milligrams paracetamol and 8 milligrams codeine phosphate, when needed for pain; Osteomol 665 milligrams paracetamol, four per day; and Teltartan HCT 40/12.5 milligrams, one per day.
39.The plaintiff continues to attend hydrotherapy three to five times per week.[53]
[53]PCB 28
40.The plaintiff suffers constant pain in his lower back, with pain into his legs down to his heels.[54]
[54]PCB 29
41.The plaintiff said he is able to sit for 15–20 minutes before aggravating his pain levels, and that his pain is aggravated by bending and twisting.[55] The plaintiff said that when his pain is aggravated, he needs to lie down and wait for the pain to reduce.
[55]PCB 29
42.The plaintiff considers his pain is getting worse. He said that when he stopped work, he was able to stand up for 40 to 45 minutes,[56] but that has now reduced to only 30 minutes.[57] The plaintiff also said that he is having greater difficulty obtaining adequate pain relief from his medication.[58]
[56]T30, L16 – 19
[57]PCB 30
[58]PCB 30
43.The plaintiff said that he usually limits his driving to his local area, but that if needed, he can drive into the city, which takes just over an hour. He said he hardly ever does that, however, and that when he does, his pain is severe.[59] The plaintiff also said that every few months he might travel with his family to a national park, as that is an activity which they enjoy doing together. However, he would get his wife to drive the car and he suffers pain whilst on the outing.[60]
[59]T26, L10-25
[60]T28, L1-7
44.The plaintiff is restricted in the activities he can do around the house, and has difficulties playing actively with his youngest song. His intimate relations with his wife have also been affected.[61]
[61]PCB 31
45.The plaintiff has suffered depression as he feels that his life is now worthless. He has been prescribed anti-depressants since approximately July 2015.[62]
[62]PCB 31
Vocational assessment report
46.The defendant obtained a vocational assessment and labour market analysis report from occupational therapist, Ms Katarina Jakovljevic, dated 27 September 2016. This report was based upon an interview with the plaintiff on 21 September 2016. In her report, Ms Jakovljevic stated that, in her opinion, suitable employment for the plaintiff would include the following jobs:
(i)Cashier-currency exchange
This job requires Year 10 level education and requires the worker to receive and process payments, including with cash and credit cards, as well as count and record money.
Ms Jakovljevic concluded that this was an appropriate and realistic occupation for the plaintiff.[63]
[63]DCB 47
(ii)Electronic product assembler
This job involves putting together components in the production of electrical and electronic equipment. It is mostly performed at a bench, allowing a worker to sit on stools.
The job description did not detail the weights likely to be handled in such a job, nor whether any lifting of finished products would be required. I consider there was a general lack of detail provided by Ms Jakovljevic in relation to this position.
In relation to the sample electronic assembler jobs identified by Ms Jakovljevic, I note that one required the worker to have good communication skills and computer experience, while another was stated to be a graduate position. The other sample job had its location listed as being in the “CBD and inner suburbs”[64] and the production manager’s work address was in Abbotsford.
However, Ms Jakovlejevic concluded that work as an assembler would be “a good option” for the plaintiff.[65]
(iii)Uber driver
This job involves picking up passengers and taking them to a desired destination, including assisting passengers with luggage and collecting fares.
Ms Jakovljevic considered that this job was within the plaintiff’s residual capacity.[66]
(iv)Courier (light)
This job could involve the couriering of either spare parts, pathology samples, or pharmacy products. Such goods would be of light weight.
Ms Jakovljevic also considered this job was appropriate for the plaintiff.[67]
[64]DCB 63
[65]DCB 48
[66]DCB 49
[67]DCB 50
47.Ms Jakovljevic then identified the availability of such jobs in the area near the plaintiff’s home, and the average gross hourly rate associated with each position.
Medico-legal evidence
48.The plaintiff’s solicitors arranged for the plaintiff to be examined by occupational physician, Dr Joseph Slesenger, in October 2016. In his report dated 10 October 2016, Dr Slesenger diagnosed the plaintiff as suffering a mechanical injury to his lumbar spine with aggravation of degenerative disease, together with a chronic pain disorder and psychological impairment.[68] Dr Slesenger stated that there was an organic basis to the plaintiff’s symptoms and noted an absence of non-organic features.[69]
[68]PCB 106
[69]PCB 106
49.Dr Slesenger then stated that, as a consequence of the manual handling and postural requirements associated with his job, the plaintiff was unable to return to his pre-injury duties. In respect of alternative suitable duties, Dr Slesenger was of the opinion that given the plaintiff’s age, his current residential location, his level of symptoms, his medication side-effects, his functional limitations and the unpredictable nature of his symptoms, his past occupational experience, and his lack of transferable qualifications and lack of computer skills, he was unlikely to be able to return to work performing suitable alternative duties.[70]
[70]PCB 106
50.Dr Slesenger then considered the four jobs proposed by Ms Jakovljevic, and provided his opinion as to the suitability of each:
(i)Cashier: Dr Slesenger was of the opinion that the plaintiff could not perform this role, as it was likely to require him to sit for prolonged periods, and may also involve him carrying cash to a safe holding area, which may exceed his lifting limit of five kilograms, and could involve bending and twisting.[71]
(ii)Product assembler: Dr Slesenger simply stated “I am of the opinion that he could not perform this role.”[72] He does not elaborate as to why, save to refer to the plaintiff’s functional limitations and the severity of his symptoms. His opinion is that the plaintiff is “unlikely to attend work on a consistent and reliable basis”.[73]
(iii)Uber driver: Dr Slesenger considered the plaintiff would have difficulty performing this role, as it would involve significant driving, and the plaintiff has an inability to sit for prolonged periods. Dr Slesenger also considered the plaintiff would have difficulties assisting passengers with their luggage.[74]
(iv)Courier: Dr Slesenger was also of the opinion that the plaintiff could not perform this role, as he would be required to sit for prolonged periods and may be exposed to vibrational forces, or be required to bend and twist when accessing parcels or other deliveries.[75]
[71]PCB 107
[72]PCB 107
[73]PCB 107
[74]PCB 108
[75]PCB 108
51.The plaintiff’s solicitors arranged for the plaintiff to be examined by neurosurgeon, Mr David Brownbill, in February and September 2016. In his first report, dated 3 February 2016, Mr Brownbill diagnosed the plaintiff as suffering aggravation of lumbar spine degenerative changes, consistent with the work activities of 7 October 2011. He was of the opinion that the plaintiff was unfit for his pre-injury employment, and that he should avoid heavy lifting, forced spinal mobility, and repeated bending or prolonged standing or sitting.[76] Mr Brownbill considered the plaintiff capable of performing full-time employment with such restrictions.[77]
[76]DCB 30D
[77]DCB 30E
52.In a subsequent report, dated 8 September 2016, Mr Brownbill confirmed his earlier diagnosis and repeated his opinion that the plaintiff had the capacity to perform light duties.[78]
[78]DCB 30I
53.In a further supplementary report, dated 11 September 2016, Mr Brownbill considered the jobs proposed in the CoWork report. He stated that the options of Uber driver and courier would not comply with his recommended restriction of no prolonged sitting,[79] but did consider the options of cashier and product assembler to comply with his restrictions. Mr Brownbill stated that the number of hours the plaintiff could work in restricted employment would be:
“dictated by his responses although I consider it likely that in a graded fashion, he would be able to return to full-time employment ... noting that he had been continuing to work for 2½ years full-time on light duties (although with continuing pain) until his job was terminated in 2014”.[80]
[79]DCB 30L
[80]DCB 30L
54.Although Mr Brownbill’s reports were obtained by the plaintiff’s solicitors, they were ultimately tendered by the defendant in support of its case that the plaintiff has a capacity to perform full-time light work.
55.The defendant’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, in May 2015. In his report dated 21 June 2015, Mr Dooley diagnosed the plaintiff as suffering a soft-tissue injury to his lumbar spine, which involved aggravation of underlying degenerative disc disease. He considered that the plaintiff’s employment was a significant contributing factor to his injury.[81] Mr Dooley was of the opinion that the plaintiff had a physical capacity to carry out light duties work and clerical-type work.[82]
[81]DCB 29
[82]DCB 29
56.On 10 October 2016, Mr Dooley provided a brief supplementary report in which he commented on Ms Jakovljevic’s report. He stated that, from an orthopaedic point of view, the plaintiff would have a physical capacity to work as a cashier, electronic assembler, Uber driver, and courier of light goods.[83] However, Mr Dooley was of the opinion that any return to work would need to be on a graduated basis, and he considered the plaintiff would have “the potential to graduate towards full-time work”.[84]
Credibility
[83]DCB 30
[84]DCB 30
57.I consider the plaintiff to be creditworthy and reliable. He gave frank evidence, and I do not consider he attempted to embellish his answers.
58.The plaintiff had a strong work ethic, as demonstrated by the numerous jobs he undertook upon first arriving in Australia, and further, by his obtaining employment with the defendant in 2006, within days of his return from Pakistan with his wife and children. After the accident, the plaintiff persisted in his employment on light duties for two and a half years, despite ongoing pain. He told the pain management assessor that he wanted to keep working, and I accept his evidence that he would like to work now, if he could obtain suitable employment consistent with his restrictions.
59.The plaintiff made a concerted effort in respect of his rehabilitation. At times he was undertaking hydrotherapy exercises on a daily basis, together with home exercises every second day. The plaintiff continues to do hydrotherapy on a regular basis.
60.The plaintiff undertook and completed two courses in English, and did so, despite difficulties with his pain levels and his sitting tolerance. Despite these two courses, the plaintiff is still only able to speak very limited English.
61.In cross-examination, the plaintiff was asked about the improvement he had gained from Lyrica medication. He acknowledged that by July 2014, he had improved, but that his pain fluctuated, such that “it was better sometimes, it was worse the others.”[85]
[85]T26, L4-5
62.The plaintiff was also cross-examined on the history he provided Professor Bittar in September 2014.
“Q: “And he said that by the time he saw you in September, your condition had improved significantly since a few months earlier?---As I explained to you before, my pain level fluctuates. Sometime it get less, sometime it get more and sometime it gets extremely worse.
Q: What I suggest to you, Mr Maqsoudi, is that in the second half of 2014, you were a lot better than you had been before as far as your back pain and that you told both Mr Bittar and Dr D'Argent about that at the time?---I've said my symptoms as it was, so when I was good, I've told them I was good, yes.”[86]
[86]T29, L1-11
63.I consider this extract of transcript to reflect the plaintiff’s candour, and I have no hesitation in accepting the plaintiff’s evidence in whole.
Permanent
64.In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[87]
[87]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
65.I am satisfied that the plaintiff’s lower back injury and the consequences which flow are permanent. There is no surgical treatment recommended, the plaintiff has been on similar levels of medication for several years, and the doctors accept the lower back injury is stable.
Loss of earning capacity
66.To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, that as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
67.The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[88]
[88]Ibid, [25] and [28]
68.In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[89]
[89]s134AB(38)(f)
69.The parties agreed that the plaintiff’s highest annual earnings in the three years prior to his injury was $42,312 gross, and that this was the figure which most fairy reflected the plaintiff’s pre-injury earning capacity. This equates to a weekly amount of $813.69.
70.Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $488.22 gross per week, and that such a restriction on his earning capacity will be permanent.
71.Section 134AB(38)(g) of the Act, places an onus on the plaintiff to make reasonable attempts to participate in rehabilitation or retraining, and states that in assessing such a claim I should consider what the plaintiff would be capable of earning if such rehabilitation or retraining had been undertaken.
72.Ms Britbart referred me to a decision of His Honour Judge Jordan in Elias-Mikre v Royal Melbourne Hospital.[90] In that case, the plaintiff was a 35 year old woman with a lower back injury, which prevented her from returning to her pre-injury employment as a patient services assistant. She had ceased work when she was pregnant with her first child, and had not returned to any paid employment. Ms Elias-Mikre had undertaken a two month Certificate at Victoria University, but had otherwise done no further retraining. His Honour concluded that the plaintiff had not discharged the onus placed on her by sub-paragraph (g).
[90][2013] VCC 1860
73.I note that most of Ms Elias-Mikre’s evidence was given directly in English, even though an interpreter was available for her use. I also note that his Honour Judge Jordan considered that as at the time of the hearing, the plaintiff’s family commitments limited her prospects of retraining. It is not apparent from the judgment what difficulties, if any, the plaintiff had at work after suffering her injury. Therefore, I consider her situation is distinguishable from the plaintiff’s in this case, and not as similar as might appear at first glance.
74.In assessing the plaintiff’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to the plaintiff’s physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[91] This is a test of physical capacity, not employability, and it involves a consideration of what the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[92]
[91]Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188 at [48]
[92]Ibid [49]
75.Although the plaintiff is still relatively young, he has now been in Australia for 15 years, and still speaks almost no English, despite undertaking two English courses. The plaintiff relied upon a Dari interpreter for the entirety of his evidence.
76.I also accept that the plaintiff has no ability to read or write in English and has no computer skills.
77.I further note, that the plaintiff received only a very basic education in Afghanistan. I therefore conclude that little, if any, improvement would be gained from him undertaking any vocational education.
78.I note that the plaintiff has only ever done manual, process-type work in Australia. Therefore, in assessing the plaintiff’s claim for loss of earning capacity, I will have regard to manual process work, consistent with the work duties the plaintiff has previously undertaken in Australia, and consistent with his language skills.
79.The doctors accept that the plaintiff cannot return to his pre-injury duties. However, all the doctors, save for Dr Slesenger, consider the plaintiff has the capacity to perform light, processing work, consistent with the certificates of capacity which have been provided to him since the October 2011 injury.
80.I gain little assistance from Dr Slesenger’s opinion. Although he is an occupational physician, his report did not clearly identify the physical restrictions imposed by the plaintiff’s lower back injury. In relation to the jobs of cashier, Uber driver and courier proposed by Ms Jakovljevic, Dr Slesenger made some attempt to identity relevant restrictions. In relation to the job of product assembler, however, he simply stated that the plaintiff could not perform the role, without adequately identifying the functional limitations upon which he sought to base his opinion. Instead, Dr Slesenger simply concluded that the plaintiff was “unlikely to attend work on a consistent and reliable basis.”[93]
[93]PCB 107
81.As was noted by the Court of Appeal in Giankos v SPC Ardmona Operations Limited,[94] an occupational physician may analyse the tasks required in a particular job by reference to the physical capacity required, and then express an opinion about whether a person with a particular impairment has the physical capacity to perform a particular task. In offering his opinion on the plaintiff’s capacity to perform process work, I do not consider Dr Slesenger met this requirement, and instead strayed into a commentary, outside the scope of his expertise.
[94][2011] VSCA 121 at [96]-[97]
82.I do not consider the jobs of courier or Uber driver to be suitable employment for the plaintiff, in circumstances where I accept the plaintiff’s evidence that his sitting tolerance is limited to 15 to 20 minutes. I also accept that on the occasions the plaintiff does drive up to an hour, his pain is severe.
83.I do not consider the job of cashier to be suitable employment for the plaintiff, in circumstances where he can speak hardly any English, has no retail experience in Australia and has never used a cash register or credit card facilities. For Ms Jakovljevic to consider this a realistic occupation for the plaintiff is so fanciful, it gives me little confidence in the balance of her report.
84.The only job which I consider to be theoretically suitable for the plaintiff, is light work as an electronic product assembler. However, Ms Jakovljevic did not adequately detail the tasks performed in this role and, in particular, the weights required to be lifted, and whether lifting of finished products is required. I therefore have reservations as to whether such a job is consistent with the plaintiff’s restrictions. Further, in two of the sample jobs she identified, one was a graduate position and the other required communication and computer skills. Given the plaintiff’s lack of English speaking skills, such positions are clearly unsuitable for him. The other potential job was also unsuitable, given the plaintiff’s limited driving tolerance. I am therefore not satisfied that this constitutes suitable work for the plaintiff.
85.I accept the opinions of Dr D’Argent, Mr Dooley and Mr Brownbill that the plaintiff has the capacity to do light process work. Mr Timms, Dr Thomas and Professor Bittar have not seen the plaintiff in over two years, so I gain little assistance from their opinions in assessing the plaintiff’s current capacity. For the reasons outlined above, I gained little assistance from Dr Slesenger’s report.
86.Having accepted that such light process work may be considered suitable employment for the plaintiff, I do not consider the plaintiff could undertake such work on a full-time basis.
87.I make this finding, notwithstanding the plaintiff’s demonstrated capacity to work full-time in modified duties for two and a half years. I do so on the basis that I accept the plaintiff’s evidence that whilst on modified duties, he worked at his own pace and needed to lie down at least twice a day. I also note that he needed to rest at the end of each working day and that, by March 2014, he was barely coping at work. I also accept the plaintiff’s evidence that although he got some improvement from Lyrica in the second half of 2014, his lower back pain is now worse than when he ceased work in April 2014.
88.Mr Brownbill and Mr Dooley both consider the plaintiff has the capacity to work full-time, but that this would need to be done on a graduated basis. Mr Dooley referred to the plaintiff’s back pain worsening since ceasing work, but did not address this in the context of expressing an opinion as to the plaintiff’s capacity to work full-time again. Mr Brownbill made no mention of the plaintiff’s condition worsening.
89.Given my acceptance of the plaintiff’s evidence regarding his worsening pain, I consider the opinions of Mr Brownbill and Mr Dooley to be unrealistically optimistic.
90.I accept the plaintiff has reduced standing and sitting tolerances and that his pain worsens with twisting and bending. I also accept his evidence that when his pain is aggravated, he must lie down. I consider that with his limited standing and sitting tolerances, and increased pain from twisting and bending, the plaintiff will, at best, only ever be able to work part-time in light, product assembly work.
91.In her report, Dr D’Argent stated that light, part-time work is as much as the plaintiff could do. Although she referred to the opinion of Professor Bittar in expressing this opinion, as the treating doctor, who knows the plaintiff best, I give considerable weight to Dr D’Argent’s opinion.
92.I note that Dr D’Argent did not express an opinion as to the number of hours she felt the plaintiff could undertake in suitable employment. I am mindful of the difficulties the plaintiff experienced when studying his English course, four hours per day, five days per week. Such an activity is more sedentary and less likely to aggravate his lower back pain than light process work. Accepting that the plaintiff needs to lie down and rest when his pain is aggravated, I consider that for the plaintiff to be a reliable employee, he could not work beyond 20 hours per week. This would enable him to work reduced hours and reduced days, such that he would have time to recover between shifts, so as to ensure he could attend on a regular and consistent basis.
93.The Court of Appeal recently observed in Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 that, an assessment as to whether a plaintiff has established the requisite loss of earning capacity, need not be determined solely by reference to the medical evidence, but instead “on a full and proper consideration of all of the evidence in the application.”[95] As was the situation in Poholke, the plaintiff’s evidence of physical difficulty coping with his modified duties after suffering his back injury, was an important matter for me to consider in assessing the plaintiff’s capacity for suitable employment. For the reasons stated above, I have ultimately concluded that 20 hours a week, in light process work, constitutes the maximum the plaintiff is capable of performing in suitable employment.
[95]Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 Paragraph 131
94.I note that Ms Jakovljevic identified that an hourly rate for an electronic products assembly worker is $27.55 per hour[96] However, for the reasons detailed above, I am not satisfied the plaintiff would be able to perform such work at the level required of the job positions identified by Ms Jakovljevic. The requirements exceeded the plaintiff’s very basic skill level, and I consider a more realistic rate to be that of a light process worker, at $18.21 gross per hour, as identified in a Flexi Personnel report. [97] Given my finding that the plaintiff could not work more than 20 hours per week in such light work, if he was able to obtain such work he would earn $364.20 per week. I am therefore satisfied the plaintiff will suffer the requisite 40 per cent loss of earning capacity as a consequence of his lower back injury. I am satisfied this loss will be permanent.
[96]DCB 48
[97]PCB 121
95.Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[98] Given my acceptance that the plaintiff’s lower back injury restricts him to only part-time work, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[98]s134AB(38)(c)
96.As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[99]
[99]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
97.I am satisfied that the plaintiff suffers a serious injury to his lower back, arising as a consequence of his employment with the defendant, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
98.I will make the consequent orders.
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