Marandos v Major Carpets Pty Ltd
[2018] VCC 74
•14 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04420
| ANDREW (ANDY) MARANDOS | Plaintiff |
| v | |
| MAJOR CARPETS PTY LTD (ACN 092 486 336) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2018 | |
DATE OF JUDGMENT: | 14 February 2018 | |
CASE MAY BE CITED AS: | Marandos v Major Carpets Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 74 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – pain and suffering and economic loss – nature and extent of psychological Pain Syndrome – whether original injury resolved – credibility of the plaintiff - whether plaintiff has suffered a 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms A C Ryan | Maurice Blackburn |
| For the Defendant | Mr A D Clements QC with Ms K Gladman | IDP Lawyers |
HIS HONOUR:
Preliminary
1 Mr Marandos alleges that in the course of his employment with Major Carpets Pty Ltd, he suffered an injury to his lower spine on 26 March 2013. He was lifting a trolley which was carrying a cabinet when he twisted, suffering sudden pain across his low back.
2 Subsequent investigations indicated degenerative changes in his spine, including annular tears to the lower lumbar discs. He left work shortly after the incident, and has not returned to any form of employment since.
3 He has had a range of conservative treatment, in particular, from a pain management specialist. In 2016, he moved from Melbourne to Gippsland to a five-acre farmlet. He claims a range of social, recreational and domestic tasks have been lost or curtailed as a result of his injury. He claims he has little, if any, work capacity.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of his employment with the defendant on 26 March 2013.
5 The body function said to be lost or impaired is the lower spine. The application is brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 Mr Marandos was the only witness called to give evidence and be cross-examined. In addition, his affidavits, an affidavit of his son, Ioannis, and medical, radiological and vocational reports were tendered into evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
7 Mr Clements, on behalf of the defendant, helpfully outlined the response of the defendant to the application as:
(a) It accepted the incident occurred, generally as described by Mr Marandos;
(b) To the extent Mr Marandos suffered a lower back injury, it had largely or completely resolved, and if Mr Marandos suffered any pain or disability, it was in the coccyx region and a separate and distinct injury to the lower back;
(c) In any event, Mr Marandos suffered a range of non-organic symptoms related to a psychological Pain Syndrome which had to be disentangled from the physical injury;
(d) To the extent there was a physical injury arising out of the incident, Mr Marandos had a capacity for full-time duties, within moderate physical restrictions;
(e) The Court ought have significant reservations as to Mr Marandos’ credibility on a number of grounds, in particular:
(i) he had exaggerated the extent of his pain and disability in the lower spine;
(ii) the fact that he was able to travel to Thailand on eight occasions since the injury was inconsistent with his claimed disability;
(iii) he was able to continue his interest in motorcycling, riding up to 100 kilometres at a time.
Relevant background
8 Mr Marandos was born in 1966 and is now fifty-one years of age. He is single, with two adult children.
9 He completed Year 11 at secondary school and commenced a motor mechanic apprenticeship over two years, which he did not complete. He then worked in a range of retail and administrative positions, including as a section manager with Coles, selling paints, running his own stationery business and a take-away restaurant, as a security worker and installing television aerials. He has a cabler’s licence and a forklift licence.
10 He commenced work with Major Carpets in June 2008 as a storeman. The work required manual lifting.
11 He had a range of recreational activities which he enjoyed, including training and practising in martial arts, and camping. He enjoyed fixing cars and would carry out maintenance and restore vehicles. He enjoyed motorcycle riding.
12 He was generally in good health, although had a bout of testicular cancer in 1997. Apart from some brief episodes of low-back pain for which he saw a chiropractor, Mr Marandos suffered no significant low-back issues prior to the incident.
The incident and its consequences
13 On 26 March 2013, Mr Marandos was lifting a trolley, which had a filing cabinet on top, when he twisted his spine and felt immediate pain in his lower back. He was taken by ambulance to the Frankston Hospital, where he had a CT scan. This showed:
“Mild multilevel degenerative changes particularly at the L5-S1 levels as described.”[1]
[1]Plaintiff’s Court Book (“PCB”) 42
14 He went to see his then general practitioner, Dr Rassias. He further referred Mr Marandos for physiotherapy. According to his report,[2] the injury was to his lower back, and failed to improve significantly over the next three months despite analgesia, physiotherapy and hydrotherapy.
[2]PCB 20
15 Dr Rassias referred Mr Marandos to Dr Greg Harris, a sports physician. To that practitioner, Mr Marandos complained of ongoing low-back pain such as to prevent him from returning to work. The pain was said to be prominent when sitting or with lumbar flexion. Dr Harris said:
“… His pain has moved somewhat, and is now more in his sacral region, and is more left-sided than central. … .”[3]
[3]PCB 27
16 Dr Harris diagnosed an annular tear which he thought would resolve over several months. He recommended hydrotherapy, Pilates and an exercise program. He suggested an epidural injection, but Mr Marandos did not want to go down that path. By September 2013, Dr Harris noted ongoing lower back pain, present more in the sacral region and to the left, without radiation into his legs. He said there were annular tears at L4-5 and L5-S1 with some degenerative facet joints at L5-S1. He prescribed Panadol Osteo, Feldene and Lyrica. The back pain was constant, but Mr Marandos was capable of performing more activities, albeit with pain the next day. It would appear Mr Marandos has not consulted Dr Harris since September 2013.
17 Dr Rassias arranged an MRI scan in August 2013[4] which concluded:
“1. Moderate posterocentral disc protrusion at L4/5 and mild broadbased disc bulge at L5/S1 (both with associated annular fissures) without any contact on proximal traversing or exiting nerve roots.
2. Mild bilateral facet joint arthropathy L4/5 and L5/S1. Small left facet joint osteophyte anteriorly at L5/S1 contacts, but does not displace the proximal traversing left S1 nerve root.”[5]
[4]PCB 39
[5]PCB 40
18 Mr Marandos continued under the care of Dr Rassias until June 2015, by which time there was little change in his symptoms. He prescribed Gabapentin, Endone, Endep and Feldene. He was also prescribed Lexapro for depression. At that time, Dr Rassias said Mr Marandos was able to work light duties in office or administrative work, four to five hours per day, three days per week, providing he did not lift more than five kilograms and avoided prolonged standing, sitting, repeated bending, twisting or pushing.
19 In August 2014, Dr Shirazi referred to Marandos to Mr Timms, neurosurgeon. To that doctor, he complained of lower back pain to the left side. Mr Timms reviewed the radiology, and noted disc injuries at L4-5 and L5-S1. He did not recommend any surgical intervention. Mr Marandos also complained of pain extending to the coccyx region.
20 In about mid 2013, Dr Rassias referred Mr Marandos to Mr Toby McIntyre, physiotherapist, who treated him with exercises and Pilates. He noted centralised lower lumbar and sacral pain. The physiotherapy was maintained until September 2013.
21 In 2013, Mr Marandos was referred to Dr Shirazi, rehabilitation medicine consultant. He undertook a rehabilitation program at St John of God Hospital in Frankston which included physiotherapy, hydrotherapy, occupational therapy and psychology. Dr Rassias said Mr Marandos complained of chronic pain in his lower spine which had a significant “neuropathic and nociceptive component”.[6] Mr Marandos has remained under the care of Dr Shirazi through to the present time.
[6]Nerve pain in response to painful stimuli. PCB 14
22 Most recently, Dr Shirazi noted that Mr Marandos had difficulty completing basic personal light domestic tasks. He thought he had no current nor future capacity for work. He said MRI investigation indicated lower lumbar disc desiccation. He described the pain as “persisting mechanical back pain” with sensitisation and neuropathy in the lumbosacral region, dating to the work incident. He assessed restriction in sitting and standing tolerance, and has managed his pain medication over the years. He also described:
“… multi-level thoracolumbar degenerative disc disease with hypertrophy at the facet joints and disc protrusion without involvement of nerves at the lumbar level.”[7]
[7]PCB 18aa
23 According to his affidavits, Mr Marandos claims he continues to suffer low-back pain, and pain in the coccyx area. He says his sleep is affected. He rarely rides his motorcycle. He is no longer involved in martial arts.
24 He says the pain is particularly centred around the coccyx area and is constant, but also in the lower back. It varies in intensity from 2 out of 10, to 9 out of 10. His range of movement in the lower spine is affected. Getting out of bed is difficult. Sitting or standing for any period of time is painful. He is restricted in being able to drive long distances. He is able to manage his own shopping, but usually only lifts light shopping bags. He undertakes all his activities of daily living, although receives assistance from the local council to clean his house.
25 In 2016, he moved from Mornington to the small Gippsland town of Hedley. It is about two-and-a-half hours’ drive from Melbourne. The closest town, Yarram, is 20 minutes away. He goes there about once a week for shopping. When he purchased the property, he also purchased several tractors and a backhoe. He has been largely unable to do work with this machinery. Instead of cutting the grass or slashing, he has a number of sheep who eat down the grass. He has a number of calves and chickens. He feeds the stock, but it is light work. He collects eggs and brings firewood from a shed.
26 He no longer works on cars to the extent he used to. He does some minor work with his son. He says he has difficulty riding his motorcycle, but has been able to organise a memorial ride for a friend who died in an accident, which travelled 100 kilometres and took about an hour-and-a-half.
27 He continues to see Dr Shirazi for pain management. He sees a psychologist, Mr Brewer, once a month or so. He now sees a general practitioner in Gippsland, although mostly for coughs, colds, flu and the like.
28 He remains on a range of medication, including Gabapentin, a nerve blocker; Panadol Osteo, two tablets per day for pain; Feldene, an anti-inflammatory, one tablet per day; Endone, as needed, once or twice a week, and Lexapro, an anti-depressant, each day.
29 In early 2015, he commenced a course in project management, but did not complete it, because he had difficulty with concentration. He started an online course in business, but found it difficult to sit for long periods. He is able to use a computer. Because of the medication, he says he has difficulties with memory, balance and concentration. He finds it difficult to be around people, and gets upset easily. This would make it difficult for him to work in employment where he needed to deal with customers.
30 He says he would be unable to undertake any employment which required him to sit or stand for long periods, or lift or repetitively bend. He needs time to recover after any significant activity.
31 He was cross-examined closely about trips to Thailand since the incident. Over the last three or four years, he has been to Thailand on eight occasions. The flight is seven to eight hours. He says he enjoys the company of friends and has a drink at the bar. He takes precautionary measures, including obtaining a seat with more leg room, and taking pain-relieving medication before the flight. He says he has been advised by a doctor that alcohol assists the job of the pain medication.
32 He has not applied for any jobs. He receives a Newstart allowance as he has not been able to obtain the Disability Pension. He says he struggles to tolerate people, and work as he did before, and would not be a reliable employee.
33 The defendant admitted it had undertaken approximately 83 hours of surveillance in the course of which Mr Marandos was sighted only for six or so minutes.
34 An affidavit of Mr Marandos’ son, Ioannis, was tendered. He generally supported his father’s claims. He said his father spent less time working on cars and undertaking martial arts. He sees him down in Gippsland every two or three months and helps him with a range of jobs. He observes him in pain and notes he cannot do any heavier jobs.
Medical opinions
35 I shall refer to those parts of the medical reports relevant to the issues in contest.
36 As noted, Dr Shirazi, the treating pain management specialist, was of the view Mr Marandos had no capacity for any form of employment and was limited in being able to participate in the activities of daily living. He diagnosed multi-level thoracolumbar degenerative disc disease with hypertrophy at the facet joints and disc protrusion involving nerves at the lower lumbar level.
37 Mr Timms, neurosurgeon, diagnosed disc injuries at L4-5 and L5-S1 with pain extending to the coccyx area.
38 In July 2015, the general practitioner, Dr Rassias, said Mr Marandos had a capacity for light duties, such as office or administrative work, working four to five hours per day, three days per week, with restrictions on lifting, prolonged sitting, prolonged standing, repeated bending, twisting or pushing.
39 Dr Harris, the sports medicine specialist, considered Mr Marandos had suffered an annular tear in his lower spine with disc protrusion at L4-5, and degenerate facet joints at L5-S1. He thought Mr Marandos would improve over a period of several months and be unable to return to manual labour for six months. This was in 2013. He thought Mr Marandos had no capacity, at that time, to return to his previous work, but would be capable of working up to five hours, three days per week, with minimal sitting and no lifting of more than five kilograms. He thought the low-back pain would continue for a period of six to twelve months.
40 The most recent imaging, an MRI scan of the spine and left hip of September 2017, showed disc protrusion at L4-5, bulging and degeneration at L5-S1 without any compromise of the exiting nerve roots and with L5-S1 facet joint sclerosis and degeneration. An MRI scan of the left hip taken at the same time showed labral disruption.
41 Mr Marandos was examined by Dr Robyn Horsley, rehabilitation practitioner, in June 2017. She said Mr Marandos, on examination, presented with evidence of “fear avoidance behaviour”. He was sensitive to light touch. She diagnosed a significant injury to the lumbar spine with annular tears at L4-5 and L5-S1 which she thought were likely to cause the ongoing pain. She said he suffered mechanical low-back pain without referred pain into the legs. The pain, she thought, was likely to persist, and he was heading “down the path of chronic invalidity”. She noted his functional tolerances were poor and he would benefit from a functional restoration program. She said:
“On presentation today, Mr. Marandos would find it difficult to return to work in any capacity. Reliability would be an issue. With a functional restoration program and active management of his depression, the goal at 51 years of age would be to return to work, at least on a part time basis. However, with his social isolation, his current presentation and his four years out of the workforce, his prognosis for return to work is guarded at best. He is heading down the path of chronic invalidity.”[8]
[8]PCB 61
42 Dr Horsley set out a range of restrictions in respect of any potential employment. She said, with the functional rehabilitation program, the goal would be to return him to work up to 15 to 20 hours per week. She thought his prognosis was guarded in terms of his return to work.
43 Mr Marandos was examined by Professor Richard Bittar, neurosurgeon, in May 2017. He provided a supplementary report in October 2017. To Professor Bittar, Mr Marandos complained of constant low-back pain located in the left lumbosacral region and the coccyx area. Particularly sitting exacerbated the pain. Professor Bittar thought Mr Marandos was suffering from an aggravation of lumbar spondylosis. He thought the pain and disability would continue and was organic in nature. He said, realistically, Mr Marandos was incapable of undertaking any type of work. When provided with the most recent MRI scan, he noted it demonstrated central disc protrusion at L4-5 with an annual fissure and bulging and degeneration at L5-S1 without nerve root compression.
44 Ms Mary Oliver, a human resources consultant, provided a report under the banner Flexi Personnel. She said, at the present time, had Mr Marandos remained as a warehouse supervisor, he would be earning $64,921.00 gross per annum.
45 Mr Marandos was examined by a number of doctors on behalf of the defendant.
46 Mr Michael Troy, surgeon and musculoskeletal specialist, noted, in June 2013, a short time after the incident, that Mr Marandos said he was “about 90 per cent better”.[9] He noted the bulging at L4-5 and L5-S1 as set out on the CT scan of March 2013. He thought Mr Marandos was capable of undertaking all his activities of daily living, that he should stop physiotherapy and chiropractic treatment, and was able to return for all pre-injury duties on a full-time basis. He said the prognosis in the long term was excellent.
[9]DCB 2
47 Mr Marandos was examined by Dr Dominic Yong, occupational physician, in December 2016. He noted pain in the lower back with radiation to the coccyx. He noted difficulties with sitting or standing for any period of time, and driving for more than fifteen minutes. He received a history that the pain commenced in Mr Marandos’ low back and persisted through until 2016. He suggested an activity-based recover program with various physical therapies. He suggested ongoing exercise. He said Mr Marandos had a work capacity provided he could vary his posture between sitting, standing and walking, reduced his hours, avoid repetitive bending, twisting, pushing or pulling, and lifting more than 5 kilograms on a repeated basis. He said he could be involved in supervisory or administrative tasks. When provided with a vocational assessment of AMS Consulting of June 2015, of the various jobs suggested, he said Mr Marandos would be able to work as a customer service manager, information clerk, receiving and despatch clerk and project manager.[10]
[10]DCB 78
48 The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, in March 2017. To this practitioner, Mr Marandos described experiencing pain every day from 3 out of 10 up to 8 to 9 out of 10. The pain was largely confined to the low back, extending over the sacrum into the coccyx. Mr Simm said Mr Marandos presented in a straightforward and cooperative manner and appeared to be in pain throughout the interview. He diagnosed the plaintiff as suffering a Chronic Pain Syndrome which had replaced the original physical injury which had now become obscured by non-organic or psychological factors. He said:
“… It is reasonable to accept that the acute and severe pain, which occurred as a result of the work injury, was due to some degree of disc disruption of one of the degenerative lumbar intervertebral discs. This is a painful injury, but it usually settles over six to twelve weeks. This would seem to have occurred in this case, with the lumbar back pain being reported as much better some months after the original injury. The symptom complex then changed and became more consistent with a chronic pain syndrome with most of the pain being in the sacrococcygeal region. Sacrococcygeal pain [in] the absence of direct trauma is one of the recognised features of a chronic spinal pain syndrome. I am unable to explain, on the basis of a physical diagnosis, his clinical presentation of constant pain behaviour, his hypersensitivity to light touch and his reported intolerance to sitting, standing, walking and undertaking physical activity. He does have minor degenerative disc changes on his MRI scan, but these changes would be common in the general population of his age and would not necessarily be associated with symptoms. While these changes may have predisposed him to the original injury, one would have expected recovery or substantial improvement from the physical effects of that injury.”[11]
[11]DCB 86
49 He thought Mr Marandos had become entrenched in his invalid role. He said it was difficult to provide an opinion on his work capacity. He was not able to establish whether his physical condition would prevent him from undertaking moderate forms of physical work on a full-time basis. On the basis of his Chronic Pain Syndrome, Mr Simm thought he could not return to pre-injury employment. He thought he had the physical capacity for suitable employment, such as clerical work as listed in the vocational assessment.
50 In May 2014, Mr Marandos was examined by Dr Homolka, who would appear to be a general practitioner. Mr Marandos was cross-examined on his history to this doctor, whose report recorded that he complained of constant variable pain in the lower sacrum and coccyx. She said she received a history that the initial pain was across the lower back but that had largely resolved. She thought, at that time, that he had a capacity for full-time employment in suitable occupations, avoiding heavy manual handling, repetitive bending, remaining in a fixed position. He was suitable for the various alternative occupations identified in the NES Vocational Report of February 2014. The NES Vocational Report 2015 set out the areas of employment referred to by a number of the consultant medical practitioners, and the various tasks involved.[12]
[12]DCB 151-156
Analysis
51 Mr Clements submitted that I ought to be satisfied that while Mr Marandos suffered a low-back injury in the described incident, that he had recovered from that injury, and that his current pain was largely in the coccyx region and unrelated to the lifting incident of March 2013. In support, he referred to the report of Mr Troy, who, when he examined Mr Marandos in June 2013, said that he had recovered to the extent of 90 per cent. He also referred to cross-examination in respect of the report of Dr Homolka, who said that the pain was different in May 2014 from that suffered in the lower back in the incident.
52 In cross-examination, Mr Marandos denied that the pain in the coccyx area was the substantial pain at the present time. He said he suffered pain in the lower back and pain in the coccyx area.
53 On this issue, I prefer the opinion of the treating practitioners, including Dr Rassias, Mr Timms and, in particular, Dr Shirazi, the treating pain management specialist, all of whom diagnosed a lower back injury. In some reports, there is reference to referred pain into the sacral and coccyx area, but none said Mr Marandos had recovered from his original low-back injury and then subsequently, suffering distinct and different pain in the coccyx area. I prefer the opinion of those practitioners to the effect that he has suffered a low-back injury and the pain into the coccyx area is referred pain. I reject the views of Dr Homolka. I accept Mr Marandos’ explanation that with Dr Troy, it may have been on the day that he saw him that he was feeling relief from the pain, but that that was not a long-term thing. The treating practitioners to which I have referred have seen Mr Marandos on many occasions, and, in my judgment, are in a better position, particularly in the long term, to assess the nature and extent of injury.
54 Mr Clements was critical of Mr Marandos’ credibility. He suggested Mr Marandos was exaggerating his pain and restriction. He said it was inconsistent that Mr Marandos was able to travel to Thailand regularly, to ride a motorcycle up to 100 kilometres, and to purchase a property in Gippsland where he must have known he would be required to work outdoors in order to maintain the place, and to drive long distances for shopping and the like. I do not think the matter of Mr Marandos’ motorcycling is of great significance. He explained he was able to lean forward on the machine to relieve his back.
55 I accept it is inconsistent on the one hand, complaining of constant low-back pain with a range of restrictions, and yet purchasing a 5-acre farmlet, together with machinery and equipment. The expectation at that time was that he would be able to use the equipment and enjoy a semi-rural lifestyle. However, I accept the submission of Mr Harris, for the plaintiff, that given Mr Marandos’ ongoing pain, he was looking for some outlet, even a new lifestyle, to relieve him of his problems. Unrealistically, he thought he would be able to manage the equipment and the work but that has turned out not to be the case. That submission is supported by the fact that there was a large amount of surveillance conducted, but no reported activity viewed.
56 However, I was unimpressed with the fact that it was only when challenged that Mr Marandos accepted that he had visited Thailand on approximately eight occasions over the last three or four years. He goes for three or four weeks at a time and claims the social activities provide him with some relief. I find there is an inconsistency between claiming to suffer constant ongoing low-back pain, and be able to travel for eight or nine hours on a regular basis to South-East Asia. Further, Mr Marandos said that he is so disabled so as not to be able to work, and that he has not applied for any jobs. Again, it is hard to rationalise that position with his regular holiday trips.
57 Accordingly, I do have some reservations about Mr Marandos’ claim to be totally incapable of employment.
58 Assessing, first, pain and suffering consequences, I am satisfied that Mr Marandos suffers ongoing pain in his lower spine, including the coccyx area, which has been more or less constant over the years since 2013. I accept that he has received a range of conservative treatment, which has not provided any real ongoing relief. He is prescribed a considerable quantity of pain-relieving and anti-inflammatory medication. This is a significant aspect of his treatment. I accept that he has restrictions in a range of activities and is unable to participate in martial arts, and a number of other outdoor activities that he previously enjoyed. I accept his sleep is affected and that he has become depressed as a result of the ongoing disability.
59 In my view, the practitioner most able to make an assessment of the consequences of injury is Dr Shirazi, the pain management specialist, who has treated Mr Marandos now over a number of years. His view is that he suffers from a physically-based lower lumbar injury requiring a range of physical therapies, including physiotherapy, hydrotherapy and occupational therapy. The medication he prescribes is, on any view, substantial, and supports his opinion that the injury is physically based. He points to the fact that the radiological investigations show multi-level lower lumbar degenerative disc disease with hypertrophy at the fact joints, with protrusions and annular tears. He said Mr Marandos had no work capacity and that that was likely to continue.
60 For these reasons, I am of the view Mr Marandos meets the criteria for pain and suffering. I am satisfied the consequences to him of the physical low-back injury meet the “very considerable” test. I prefer the opinion of the treating doctors, to that of Mr Simm, who diagnosed a psychological, non-organic Pain Syndrome based upon his one physical examination. He is the only physical doctor to make that diagnosis, although Dr Horsley thought Mr Marandos was heading towards assuming an invalid role. Clearly, Mr Marandos has Depression, and there may well be an element of psychological aggravation of the physical pain. However, I am satisfied that, substantially, the injury is physical, and that physical injury accounts for his ongoing pain and disability.[13]
[13]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [25]-[29]
61 As to work capacity, I am satisfied that there is a conflict between Mr Marandos’ claimed work incapacity, with no real attempt to obtain work of any form, and his visits to South-East Asia. I am satisfied that he does have a work capacity, albeit for modified duties which avoid lifting of more than 5 kilograms, repeated bending, pushing, pulling and with the ability to stand and sit at will. The real issue for determination is whether, as a result of his lower back injury, that work capacity is reduced by more than 40 per cent.
62 I do not accept the opinion of Mr Troy, which is, in any event, now significantly dated. I do not accept the opinion of Mr Simm that, substantially, Mr Marandos is suffering from a non-organic Pain Syndrome and that his work capacity is psychologically rather than physically affected. The occupational physician, Dr Dominic Yong, in December 2016, placed a range of restrictions on his work capacity, including “reduction in working hours”.[14] Yet, he said he had the capacity for a range of employment on a full-time basis.
[14]DCB 75
63 The other employment practitioner, Dr Horsley, said that Mr Marandos would find it difficult to return to work in any capacity unless he underwent a functional rehabilitation program. With that program, she thought he would be able to work 15 to 20 hours a week with various physical restrictions.
64 Professor Bittar, the neurosurgeon, and Dr Shirazi, thought Mr Marandos had no work capacity.
65 In 2015, the general practitioner, Dr Rassias, said Mr Marandos had the capacity to work in lighter duties, four to five hours per day, three days per week.
66 As stated, I am satisfied Mr Marandos has a work capacity beyond that which he claims, and beyond that which the treating practitioner, Dr Shirazi, who I assess to be in the best position to form an opinion about work capacity, says.
67 The vocational report of NES sets out a range of areas of employment, and I accept Mr Marandos has the capacity to work as a customer service manager, information clerk, receiving and despatch clerk or project manager. However, even accepting that those areas of employment involve lighter duties, I am not satisfied that he has the capacity to work on a full-time basis. I accept that he suffers ongoing pain in the lower spine and referred pain to the coccyx, which requires him to take an extensive range of powerful medication. I accept he would not be a completely reliable employee. Realistically, his work capacity is in the range suggested by Dr Horsley of around 20 hours per week, and that that is likely to persist into the foreseeable future. An arithmetic calculation in respect of the areas of employment identified in the NES report places Mr Marandos, at 20 hours per week, with a loss of work capacity at more than 40 per cent. As such, he satisfies the criteria for economic loss consequences.
68 I shall make consequent orders, including as to costs. The parties made submissions in respect of an appropriate costs order regarding the first trial listing of this proceeding on 11 October 2017, which was vacated. Having read the submissions both of the plaintiff and defendant, I am of the view it is appropriate that the plaintiff pay the defendant’s costs of that adjourned hearing. I shall make a Costs Order to that effect.
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