Markovic v Victorian WorkCover Authority
[2021] VCC 2103
•21 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03368
| MILOVAN MARKOVIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 and 3 June 2021 | |
DATE OF JUDGMENT: | 21 December 2021 | |
CASE MAY BE CITED AS: | Markovic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2103 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – cervical spine – pain and suffering damages and economic loss damages – aggravation of pre-existing degenerative change
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; s39; s40; s325
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Richter & Driscoll & Ors (2016) 51 VR 95; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to issue proceedings for pain and suffering damages and loss of earning damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr A Allan | Zaparas & Associates |
| For the Defendant | Mr G Coldwell | Hall & Wilcox |
HIS HONOUR:
1By way of Originating Motion, the plaintiff seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to commence common law proceedings for alleged injuries sustained to the whole spine, in particular, the cervical and lumbar spine. The plaintiff asserts that his spinal injuries constitute a “permanent serious impairment or loss of a body function” pursuant to s325(1) of the Act.
2Further, pursuant s325(2)(c) of the Act, an impairment or loss of a body function is not to be held to be serious unless the pain and suffering consequence or the loss of earning capacity consequence, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.[1]
[1]See s325(2)(c) of the Act
The issues
3Counsel for the defendant identified the central issues for evaluation as follows:
(a) the reliability and credibility of the plaintiff;
(b) whether the alleged spinal injuries are compensable (the “causation” question);
(c) whether the alleged spinal impairment is serious; and
(d) the postscript: The previous payments made.
4Ultimately, counsel postulated the test as follows:
“In the end, the application’s resolution will revolve around two central matters: whether the plaintiff exaggerates his symptoms; and what the correct causation test is. We deal with reliability/credibility first; and then turn to the causation question.”[2]
[2]Defendant’s submissions at paragraph [3]
Identifying the injury
5Central to the causation issue, is the requirement for the Court to identify the compensable injury claimed.
6It is common ground in this case that the plaintiff suffered from a degenerative condition of his spine prior to commencing work with his employer, Peter MacCallum Cancer Centre, in August 2000, such that any compensable impairment claimed must be compared to the impairment subsisting prior to the workplace injury and the incremental impairment must, itself, constitute a serious injury, pursuant to the principles laid down in Petkovski v Galletti.[3]
[3][1994] 1 VR 436
7Pursuant to s327 of the Act:
“Subject to this Division, a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury.”
8In that context, s39(3) of the Act provides:
“Subject to section 7(1) and section 40(2) and (3), if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or the worker's dependants are entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.”
9The provisos referred to immediately above provide that the employment of the nature referred to must subsist after 1 July 2014 and, secondly, the employment must be a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.[4]
[4]See s7(1) and s40(3) of the Act
10Accordingly, as I perceive the evidence in this case, the plaintiff’s claim reduces to one of aggravation or deterioration of a pre-existing degenerative condition of the spine in circumstances where the nature of the employment was a significant contributing factor to that aggravation et cetera.
11The plaintiff swore three affidavits in the proceeding, dated 26 February 2019, 28 May 2021 and 1 June 2021.[5] He also gave viva voce evidence and was cross-examined. Further, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[5]Exhibit A
12In his first affidavit, the plaintiff swore that he was born in 1962, his native language is Serbian and that his English is somewhat limited. He came to Australia in 1995 and currently lives with his wife and one of two children. He also has a young granddaughter.
13Before he started his employment with the employer, the plaintiff had:
“… some on and off back pain for about six or seven years and had a scan, but it revealed nothing serious and I was able to start working with the Employer. It was nothing like the back pain I have now get.”[6]
[6]Exhibit A, plaintiff’s first affidavit, sworn 26 February 2019, paragraph [6] at Plaintiff’s Court Book (“PCB”) 18
14The plaintiff also swore that he had severe headaches over the years but “nothing like the consistent ones I have now”.[7]
[7]Exhibit A, plaintiff’s first affidavit, sworn 26 February 2019, paragraph [7] at PCB 18
15The plaintiff went to school until Year 12 and he had qualified as a fitter and turner until war broke out in about 1990. When he came to Australia, he studied English, and then worked briefly in a factory in Heidelberg, before obtaining employment with the employer.
16The plaintiff further swore that in about August 2000, he started working for the employer (the Peter MacCallum Cancer Centre), which was located in East Melbourne. He was a cleaner working on a casual basis, before moving to a full-time role in about February 2001. He finished working with the employer on 30 June 2016 and at that time was earning about $800 per week plus overtime.[8]
[8]Exhibit A, plaintiff’s first affidavit, sworn 26 February 2019, paragraphs [12]-[14] at PCB 18
17The plaintiff further swore:
“For some time before ceasing work with the Employer on 30 June 2016, I experienced back pain, and pain in my left leg, from the heavy nature of the work I was doing for the Employer.
I saw my GP in July 2008 for back pain and some pain in my left foot and big toe.
…
Things declined considerably in about 2012 and then got worse and worse from about 2015.
In September 2012, my GP referred me for CT and X-rays of the lower back because of my back pain from work. The scans showed a disc prolapse on the left side at L5/S1. My doctor discussed with me about trying to manage the pain and flare ups.
…
In January 2016, I was struggling with neck and upper back pain and my GP organised scans of the spine.
…
I had neck scans in March 2016, showing problems with the discs in my neck.
My pain continues and I saw my GP again in April 2016 about the neck and shoulder pain and stiffness. My headache was also causing me problems. At this time, my GP recommended I see a neurosurgeon.
At my GP’s recommendation, I saw Dr Stephen McKernan from MetroPain Group on 17 May 2016. I told him about my ongoing headaches and neck pain. I also told him about the pain and numbness in my fingers of my hands, causing me to wake up at night. I also told him that my hand would give way when lifting.
For the next few months, I continued to see my GP regularly about my ongoing neck pain, headaches and pain in the upper arms.
In about June 2016, my GP referred me for an MRI examination of the cervical spine and a scan of my chest. The MRI revealed problems in the disc.
I stopped work in June 2016. Up to that point, I had taken a lot of sick leave to try to deal with the pain I was in.
In August 2016, I saw my GP about my lower back pain and stiffness and the leg pain and weakness it was causing me.
I continued to see my GP regularly through the rest of that year, where he continued to provide advice and prescribe pain relief medication for me.
I also saw Dr Patrick Lo in about November 2016 at the Royal Melbourne Hospital and he recommended I have further scans.
Through 2017, my problems continued and I saw my GP regularly. My GP referred me for physiotherapy at PhysioWest, where I saw David Bergin. In particular, Mr Bergin worked on my neck.
…
In late 2017, my GP referred me to Mr Craig Timms, neurosurgeon. I told him about my ongoing back pain and neck pain and how this was affecting my arms and legs. He recommended I have updated scans.
In November 2017, I had updated scans of the upper and lower back. These again showed problems with the discs.
I returned to Mr Timms in January 2018. He said that my neck may need surgery, but that I should try conservative treatment first. He said in the lower back a Cortisone injection may help.
I continue to see Mr Timms on a regular basis. I last saw him in late July 2018. He recommended I have an epidural to the lower back, which I had shortly after the appointment. It provided some pain relief to the back and left leg pain.
I am also going to pain management at the Barbara Walker Centre.
I continue to see my GP regularly. He prescribes Maxigesic, Prodeinextra, Lyrica, Lipex and Mobic for pain relief, Zoloft, for depression, Nexium for stomach issues, Mersyndol for pain and sleeping.
In terms of future treatment, I need to undergo further GP review, physiotherapy and may need to see a surgeon again. I may also need to see a psychologist again.
…
I have not been able to return to work since [June 2016] because of my ongoing severe injuries.
I therefore believe I have lost at least 40% or more permanent earning capacity because of my injuries, which entitles me to claim damages for economic loss in my claim.” [9]
[9]Exhibit A, plaintiff’s first affidavit, sworn 26 February 2019, paragraphs [15]-[46] at PCB 18-21
Consequences
18The plaintiff swore as follows:
“I have pain to the lower back, which is significant. The pain goes from my back and into my legs and toes.
I have significant neck pain, which is constant. I get pain that goes down into my arms and fingers.
I suffer from severe headaches regularly.
At times, the pain is unbearable.
At times, I try to self-massage to try to release that pain.
Sitting and standing for long periods are difficult. If I do either for too long, my pain gets worse, so I have to rotate.
My back pain becomes sharp when I walk for long periods of time.
I rely on the medications to cope with the pain, but sometimes that doesn’t even seem to work.
I am limited in what I can do around the home, in terms of cleaning, and rely on others, in particular our child who still lives with us.
I used to love gardening. Now it is too much for me. Other outdoor activities around the garden, like mowing, and handyman work are all affected because of my injuries and pain.
I am able to drive, but I struggle with the pain and avoid doing any long distance driving.
My sleep is terrible now. I get a lot of pain at night, wake up with pain and numbness and also have shocking dreams. I also have trouble getting to sleep or getting back to sleep and my mind races with negative thoughts.
I am not the same person with my family any more.
My sex life is affected and significantly limited because of my injuries and pain. I have also lost libido.
I have a young granddaughter. While I love being with her, I realise my limitations with her and have to be careful when I play with her and lift her up and the like.
…
I once loved fishing, which I did around once a week before my injuries. I have attempted fishing trips since my injuries but I find it very difficult to cope with pain.
I loved watching soccer most weekends during the season, but now due to my pain I rarely attend soccer matches.
I loved travelling around country Victoria, and around Australia, to places like Cairns and Darwin. It would be too much to get around like that now because of my pain and condition.
I also loved going dancing regularly at the Serbian Club, once a month or more, but I have had to give that away because of my injuries.
I socialise less now. I see my friends rarely and I don’t like being with them in this state, being in pain and not being able to do things with them any more.”[10]
(sic)
[10]Exhibit A, plaintiff’s first affidavit, sworn 26 February 2019, paragraphs [47]-[69] at PCB 21-23
19In his second affidavit, sworn 28 May 2021, the plaintiff swore as follows:
“During 2019, I continued to see Dr Jennifer Dawson at the Barbara Walker Centre for Pain Management. I tried a lot of different medications, including Norspan patches. I also saw Dr Andrianakis regularly.
On 25 July 2019, I had an injection into my back, after a recommendation from Dr Dawson. This helped a lot with my leg pain I had but not much with the back pain. I was then referred to the St Vincent’s Hospital neurosurgery department for further treatment because it was a public hospital. I was supposed to have another injection before the virus but then I had to cancel it due to a death of my father, which was very upsetting for me.
I continued to try and self-manage as best I could, I did a lot of exercise and work in the pool, and this did help my back pain.
In 2020, it was hard to get to the pool or to gym or to the physio due to the virus and my treatment stopped for a while. I found that my back pain got worse because I wasn’t active. I spent a lot of time inside as I was worried about getting the virus.
In late 2020, I went back to the Barbara Walker Centre for Pain Management, seeing, Dr Jennifer Dawson there, I also had physio sessions with Richard McGlynn, focussing on my neck pain.
In early 2021, my lower back pain got worse again, Dr Andrianakis referred me for an X-Ray and CT Scan of my lumbar spine, which I had on 25 January 2021, I had to have some help getting in the machine due to back pain.
To help with my pain I take Maxigesic, 2 at night, every day. For the last three months or so, I have been taking Targin 10.5mg. I take 1 in the morning, around 3-4 days of the week. I also take Lyrica 75mg,1 in the morning and 1 at night, again about 3-4 days a week. I try and alternate the Lyrica and the Targin. I also take Mydol, which is a combination of Panadol and codeine. I take Mydol every 6 hours, about 4 days of the week. Once a week I used Morphine patches,
For my mental health issues, I take Zoloft.
I often have an achy feeling in my stomach which I think comes from all this medication I have been taking for too long. I have an upset stomach quite a lot and my bowel movements are not good.
I see my GP, Dr Andrianakis, once a fortnight or so. He gives me certificates which say that I can’t work.
My problems remain very similar to the way I described them in my first affidavit.
I continue to have pain in my neck and my back.
The neck is an aching pain that is always there, and gets worse the more I move it.
When my neck pain is bad, it will go down into my left arm and hand. I feel like my left hand and arm are weak and I have problems gripping and holding things with that hand. My neck pain gets worse if I move my neck too far in one direction, or keep it in the one position for too long. My neck feels very stiff.
If I move my neck too much or too far, I will get a flare up of neck pain. It usually takes a few hours to settle down and I have to take my medication, But if it is a really bad flare up, it will last for more than a day.
My lower back pain is an aching pain that goes down into my left leg. Again, it is always there at least as a dull ache but it is not as bad as my neck. The injection that I had in 2019 helped for about 1.5 years, but I feel like it has started to wear off now. I get flare ups of back pain too if I bend too much or try and lift something heavy, or spend too much time on my feet. I have to lie down until my back pain settles again.
My left leg feels quite weak and numb and I feel like I have lost muscle there. Sometimes, when I have been getting bad left leg symptoms, I have had to use a walking stick but this has been less often lately as I have been doing more exercise. My back pain gets worse with long periods of sitting or standing, or doing lots of bending or trying to lift heavy things.
My neck pain and back pain will both interrupt my sleep at night. It happens every night, one or two times. It is hard to get back to sleep. I feel tired and sore in the mornings. I would say I only get 3-4 hours of sleep a night.
I am still trying to stay as active as I can. If I am having a good day with my neck and back, I will go for regular walks. I might walk 1-2km and I try and do that more than once in the day if I am feeling good.
I do not do much housework now, as I am trying to protect my neck and back. Usually, one of my children will help with these things. Before my neck and back pain got bad I would do a lot more gardening and handyman work too at home. I feel like I am not helping much which upsets me.
I go and see my other children and grandchildren once a month or so. They live about 15km away. I still have problems picking up and playing with my grandchild due to back and neck pain, though. I can also do my own shopping, although I try not to buy too much at once. I spent a lot of time watching TV, and lying down.
I used to enjoy fishing, going to soccer matches, and dancing at the Serbian club, but these things are too much for my neck and back now. In terms of fishing, my friends and I would river (sic) to the Murray River and fish there. As I said in my first affidavit, I used to fish about once a week before my injuries. I really loved it, and it was a good social activity too, I miss it a lot.
…
I haven’t returned to work. I do not feel capable of working anymore due to my back and neck pain.
I am not a good person with computers. My wife is the one who will set up Zoom conferences and things like that. My English skills are OK for only basic things. I prefer to uses Serbian for complicated things. I managed at the cleaning job because a lot of people there spoke Serbian, including my supervisor.
Even if I could find a light job within my skills, I feel like the flare ups of pain I get in my neck and back would make it impossible to work consistently.”[11]
[11]Exhibit A, plaintiff’s second affidavit, sworn 28 May 2021, paragraphs [3]-[28] at PCB 21-28
20In his third affidavit, sworn 1 June 2021, the plaintiff was provided with a document setting out his duties and responsibilities as provided by the employer. With respect to those duties, he swore as follows:
“I personally found those duties to be physically demanding I would do lifting, bending carrying and reaching, I would work at a fast pace and move my arms quickly while cleaning. All this put strain on my back and neck. I would be physically tired at the end of the day from the work.
As said in my first affidavit, over time, beginning in about 2012, doing this sort of work gave me low back pain. After 2012, it was not so bad that I had to stop work, though. I could manage it myself and I did not need to see a doctor.
However, by early 2016, the work that I was doing at Peter MacCallum was giving me worse low back pain, and also neck pain, I saw Dr Adrianakis about this in January 2016. I have not been free of low back or neck pain since that time.”[12]
[12]Exhibit A, plaintiff’s second affidavit, sworn 1 June 2021, paragraphs [4]-[6]
21Defence counsel submits that this affidavit evidence is unreliable and misleading as to the following issues:
(a) it dramatically understates the nature and extent of his pre-existing spinal impairment;
(b) it fails to mention he had been unemployed and received Centrelink benefits for four years prior to commencing his employment;
(c) it fails to mention that he ceased his employment due to voluntary redundancy; and
(d) it exaggerates the extent of his symptoms, restrictions and consequences: In the context of contrary medical opinion from treating practitioners, together with surveillance footage.
22Defence counsel points out that, in cross-examination, the plaintiff denied he had lower back pain and difficulties other than “minor symptoms nothing else”.[13] Defence counsel submits that this is in direct contrast to the tendered Centrelink medical certificates from the plaintiff’s former general practitioner, Dr Woodard, who had certified the plaintiff unfit for work due to lower back pain on 7 August 1999, 28 September 1999, 11 February 2000, 24 March 2000, 18 May 2000 and 13 July 2000.[14] The plaintiff’s explanation for failing to mention these facts in his affidavits was attributed to “poor memory”.
[13]Transcript (“T”) 31
[14]Exhibit 12
23Defence counsel also submits that the plaintiff, by denying he had suffered lower back pain since the early 1990s,[15] had contradicted his own affidavit evidence that he had back pain for six or seven years before starting employment on 29 August 2000. Once again, it was submitted, the plaintiff blamed poor memory for being unable to explain the history recorded by his general practitioner, Dr Iphigenia Chronas, on 28 September 2012, that he had symptoms from a left L5-6 disc prolapse “on and off for 20 y[ea]rs”.[16] Defence counsel also submits:
“The plaintiff was unsure about his own affidavit evidence as to his pre-existing back condition, conceding ‘maybe I made a mistake I don’t know’.”[17]
[15]T34
[16]Exhibit 11, 151 Medical clinical notes, Defendant’s Court Book (“DCB”) 306
[17]T34
24Further, the plaintiff admitted in cross-examination that he had neck pain going back many years prior to 2016.[18] However, he alleged he did not remember having neck pain and being sent for x-rays of his cervical spine in 2002. The x-ray report dated 27 September 2002[19] confirms “[n]eck pain”, under the heading “Clinical Notes”. It is submitted such a history is absent from the plaintiff’s affidavits.
[18]T40
[19]Exhibit 4, DCB 23
25Defence counsel also submits the plaintiff was disingenuous in stating on his Claim Form, dated 27 July 2016, that he had pre-existing lower back, neck and upper back problems “for a few years”.[20]
[20]Exhibit D, DCB 14
26Further, defence counsel submits that the affidavit fails to disclose any periods of unemployment between working in a factory in Heidelberg and commencing with Peter MacCallum Cancer Centre on 29 August 2000. The plaintiff, it is submitted, conceded in cross-examination that he received Centrelink benefits during this four-year period and was receiving certificates from his general practitioner for back pain during some of this period.[21] Defence counsel also calls into question that the plaintiff’s affidavit failed to reveal he had applied for a voluntary redundancy package on 7 December 2015[22] and failed to acknowledge that he performed his normal cleaning work until 30 June 2016, when the redundancy took effect.
[21]T33
[22]Exhibit 8
27Insofar as the plaintiff’s memory and lack of relevant material in his affidavit is concerned, I accept the thrust of defence counsel’s submissions and consider I must look to other objective evidence in attempting to assess the plaintiff’s claim.
28First, it is clear enough the plaintiff had suffered from ongoing pain in his spine that may have subsisted for some twenty years prior to the relevant employment.
29Secondly, there is an x-ray of the lumbar spine dated 25 March 2000, addressed to the general practitioner, Dr Woodard, which reveals:
“… The lumbo-sacral disc space is narrow. There is a mild retrolisthesis at the lumbo-sacral junction … .”[23]
[23]Exhibit 4, x-ray of the lumbar spine dated 25 March 2000, DCB 22
30There is no other radiological evidence tendered relating to the pre-employment period. There are, in evidence, however, the Centrelink medical certificates referred to between 7 August 1999 and 13 July 2000,[24] which certify the plaintiff unfit for work due to lower back pain.
[24]Exhibit 12
31After the plaintiff commenced work in August 2000, there is in evidence, in 2002, an x-ray of the cervical spine, once again addressed to Dr Woodard, which states:
“… Loss of normal cervical lordosis is noted, with slight reverse kyphosis centred on the C4/5 disc posteriorly. Vertebral alignment and disc spaces are otherwise preserved … .”[25]
[25]Exhibit 4, x-ray of the cervical spine, dated 17 September 2002, DCB 23
32Then, on 8 September 2012, there is a report of a lumbar spine x-ray to general practitioner, Dr Chronas, to the following effect:
“At L5/51 there is a far left lateral disc prolapse that is chronic and partially calcified. It results in moderate left foraminal stenosis and mild left lateral recess stenosis. The former may be impinging upon the left L5 nerve root while the latter may be irritating the left S1 nerve root. There is no associated central canal stenosis or right neural impingement.
There is no stenosis or other significant posterior disc prolapse, central canal stenosis demonstrated elsewhere. All facet joints have a normal for age appearance.
Conclusion:
Far lateral left sided disc prolapse that is chronic, at L5/S1 … .”[26]
[26]Exhibit 4, x-ray and CT scan of the lumbar spine, dated 8 September 2012 at DCB 24
33In lay terms, this would appear to represent a deterioration since the x-ray taken on 25 March 2000.
34The plaintiff then tendered radiological evidence consisting of, first, a cervical spine x-ray of 5 March 2016, which reported:
“… C5/6 and C6/7 cervical spondylosis with apparent bilateral C6/7 bony foraminal stenoses. CT cervical spine can be performed for further assessment.”[27]
[27]Exhibit B, x-ray of the thoracic spine, dated 5 March 2016, PCB 129
35Further, an MRI scan of the cervical spine, dated 1 June 2016, revealed inter alia:
“Mild cervical spondylosis with diffuse disc bulges at C5/6 and C6/7 levels. Moderate left C6/7 foraminal stenosis with mild impingement of the left C7 nerve root. Mild changes elsewhere in the cervical spine.”[28]
[28]Exhibit B, MRI scan of the cervical spine, dated 1 June 2016, PCB 130
36Once again, this would seem, from a lay view, to represent a deterioration of the cervical degenerative condition.
37Further, MRI scans of the cervical spine and the lumbar spine confirmed the clinical notes of radiculopathy at C5-6 and C6-7, together with increasing Left C5 radiculopathy.[29] With respect to the lumbar spine, the radiologist stated:
“There are left sided paracentral/foraminal disc protrusion at L3/L4 and L5/S1 level with likely irritation of the left L3, L4 and S1 nerve roots as described above.”[30]
(sic)
[29]Exhibit B, PCB 131-132
[30]Exhibit B, MRI scan of the lumbar spine, dated 29 November 2017, PCB 132
The Plaintiff’s medical evidence
38Dr Peter Andrianakis, general practitioner, noted that the plaintiff’s work as a cleaner involved a lot of manual work duties and some heavy lifting. He was seen on 8 January 2016 and complained of neck pain and stiffness, with pains in his upper back, and he described these pains as getting worse when bending, lifting and doing other duties associated with cleaning.[31]
[31]Exhibit G, PCB 39
39Dr Andrianakis also recorded a disc prolapse at L5-6 in his clinical note of 28 September 2012.[32] He also recorded a history that the plaintiff had symptoms “on and off for 20 y[ea]rs”.[33]
[32]Exhibit 11, DCB 306
[33]DCB 306
40Mr David Bergin, treating physiotherapist, noted that the plaintiff attributed the onset of his symptoms to his work as a cleaner, although there was no particular injury or incident as a trigger.[34]
[34]Exhibit H, PCB 51
41The treating neurosurgeon, Mr Craig Timms, noted the plaintiff had worked as a cleaner with the employer for sixteen years and that he had hurt his back in 2012, but kept working. He also noted that in 2015, he developed problems in his neck and down his left arm.[35]
[35]Exhibit J, PCB 57
42Pain specialist, Dr Jennifer Dawson noted that the plaintiff had chronic pain in multiple sites, including neck pain and left-sided C6-7 radicular pain, lower back and left-sided L5 radicular pain secondary to broad-based disc herniation, having built up over years as the result of the repetitive physical work as a cleaner, but without a clear history of a precipitating cause. She noted that his pain was worse with movement, especially flexion, and that had had a significant impact on his work and life.[36]
[36]Exhibit L, PCB 65
43I consider that these histories were consistent with those taken by Dr Jamie Young, also at St Vincent’s Hospital.[37]
[37]Exhibit K, PCB 59
44Further, Dr Hazem Akil, neurosurgeon, took a history that the plaintiff’s problems started around 2011 or 2012 in respect to the lower back, and around 2015 in respect of the neck. He recorded:
“… the aggravation of the cervical and lumbar spondylosis as well as the radiculopathy of the left C7 and left S1 is posed by the nature of work that he used to perform as a cleaner at Peter MacCallum Cancer Centre. The cleaner job involved repetitive bending, pushing and pulling and lifting heavy object[s]. It is very logical and possible that this is the cause of the aggravation of his symptoms.”[38]
[38]Exhibit M, PCB 70-72
45Dr Akil thought the prognosis was poor regarding his neck and back pain and uncertain in relation to his radicular pain. His treatment suggestions included anterior cervical decompression and fusion and a left L5-S1 microdiscectomy and rhizolysis. He felt he was unable to return to his pre-injury employment on a part-time or full-time basis and that he was only suitable for sedentary employment.[39]
[39]Exhibit M, PCB 72 and 74, and PCB 80
46Also, pain specialist, Dr Richard Sullivan, noted that in 2012, the plaintiff began to experience lower back pain which was mild initially and intermittent, but became more constant. It was further noted that the symptoms were raised in the context of his work, which was heavy and arduous in nature as a cleaner for Peter MacCallum Cancer Centre for some sixty years. It was Dr Sullivan’s opinion that the cervical and lumbar spondylosis had quite plausibly been caused, and if not caused, then aggravated by, his work as a cleaner at the Peter MacCallum Cancer Centre and that, therefore, his presentation was consistent with the history of pain arising in the context of his work as a cleaner.[40] Further, Dr Sullivan stated:
“In my opinion, the cervical spondylosis and lumbar spondylosis have quite plausibly been caused and if not caused then aggravated by his work as a cleaner at Peter McCallum Cancer Centre. I therefore find that his presentation is consistent with the history of pain arising in the context of his work as a cleaner for Peter McCallum Cancer Centre.”[41]
[40]Exhibit N, PCB 87
[41]Exhibit N, PCB 88
47Dr James Rowe, occupational physician, noted that the plaintiff’s work involved heavy repetitive bending, twisting and lifting, and he was often required to lift or move furniture or heavy bins to facilitate cleaning under and around them, as well as operate a heavy vacuum, and as a result of the heavy and repetitive nature of his work, he developed neck pain and lower back pain, and radiation of pain into his left leg. He first noted symptoms in about 2012, but was able to continue working. His symptoms worsened considerably from about 2015, and he also noted that the plaintiff had intermittent lower back pain in the past, approximately six years before he started working at the Peter MacCallum Cancer Centre. Dr Rowe considered that work was a significant contributing factor to his back and neck injuries.[42]
[42]Exhibit O, PCB 101 and 104
48When specifically asked to comment on Dr Catherine Bones’ report (for the defendant), Dr Rowe stated that, even upon cessation of work, improvement does not always occur and the plaintiff can reach a “tipping point” from which there is no recovery. Dr Rowe considered that employment was a significant contributing factor and the plaintiff performed duties which placed great loads on the spinal column and, therefore, most likely aggravated his pre-existing condition. Thus, he considered, it is likely that the work described produced and/or aggravated the condition resulting in his restrictions and incapacity.[43]
[43]Exhibit O, PCB 111
49Mr Craig Timms, treating neurosurgeon, saw the plaintiff first on 22 November 2017 and diagnosed the plaintiff with a lower back injury, with weakness particularly in the L5 distribution in the left leg, involving left leg sciatica.[44]
[44]Exhibit J, PCB 57
50Further, on 17 January 2018, after viewing a recent MRI scan of the cervical spine which had shown a C6-7 disc protrusion with osteophyte formation, he considered it was likely causing his C6-7 radiculopathy.[45]
[45]Exhibit J, PCB 58
51It was Mr Timms’ opinion that the plaintiff may need an anterior cervical discectomy at that level. He also diagnosed a focal disc protrusion on the left at L5-S1, which he thought should be treated with an epidural cortisone injection and as a last resort a left L5-S1 microdiscectomy.[46]
[46]Exhibit J, PCB 58
52Dr Young, a pain management specialist, diagnosed the plaintiff with C6-7 radicular pain and L5 radicular pain secondary to a broad-based herniation.[47]
[47]Exhibit K, PCB 59
The Defendant’s medical reports
53The plaintiff was first seen by occupational physician, Dr Geoffrey Graham, on 31 August 2017.[48] The plaintiff provided him with a letter from Dr McKernan, general practitioner, dated 17 May 2016, which revealed he had undergone an MRI scan of his cervical spine on 1 June 2016, which showed evidence of mild cervical spondylosis with diffuse disc bulges at C5-6 and C6-7.[49] Dr Graham also took a history that the plaintiff’s lower back symptoms had persisted and he experienced symptoms in his left leg, primarily a pinching sensation in the left hip, and at times in the ankle. These symptoms may last five or six days before easing.[50]
[48]Exhibit 5, DCB 27
[49]Exhibit 5, DCB 28
[50]Exhibit 5, DCB 28
54Dr Graham also took a history that the plaintiff had ceased work on 30 June 2016 “having accepted a redundancy”. Further, since that time, his neck pain had increased, as had his lower back pain.[51] At that time he was taking an opioid analgesic, Panadeine Forte, and a simple analgesic, Panadol Osteo.[52] Further, Dr Graham took a history that in 2012, he was experiencing problems with his lower back and consulted his local doctor. He had experienced intermittent symptoms since that time.[53]
[51]Exhibit 5, DCB 28
[52]Exhibit 5, DCB 29
[53]Exhibit 5, DCB 30
55Dr Graham considered that it was probable that he had a degree of degenerative change in his cervical spine but felt that exaggeration noted on clinical examination made assessment of it difficult. He also thought he had a degree of degenerative change in his lumbar spine.[54]
[54]Exhibit 5, DCB 31
56Dr Graham thought that:
“These conditions will be part of the natural ageing process.
…
He is experiencing symptoms related to a long term, progressive, degenerative condition.”[55]
[55]Exhibit 5, DCB 32
57Dr Graham also thought that because he performed his normal duties until he accepted voluntary redundancy, he suggested that he does have the capacity for his pre-injury duties.[56]
[56]Exhibit 5, DCB 32
58I note that in this report, Dr Graham did not take a history of the nature of the work duties and whether or not they would be capable of aggravating the underlying degenerative condition. Thus, without taking this history he stated:
“I would accept that he is experiencing symptoms relating to this degenerative change but it cannot be directly attributed to his employment, particularly given that the symptoms have increased since he ceased employment two months ago.”[57]
[57]Exhibit 5, DCB 33
59In his follow-up report dated 16 September 2016, Dr Graham reviewed some progressive clinical notes provided by the defendant, in particular:
“… On 06.09.2012 he complained of low back pain and on 28.09.2012 there is noted a chronic left L5/6 disc prolapse.
Radiology reports contained within the progress notes indicate that an x-ray and CT scan of the lumbar spine performed on 08.09.2012 was reported as showing a calcified left disc prolapse at L5/S1, indicating a long-term condition. An x-ray of the cervical and thoracic spine performed on 05.03.2016 was reported as showing evidence of degenerative change as was an MRI scan of the cervical spine performed on 01.06.2016 … .”[58]
[58]Exhibit 5, DCB 42
60Dr Graham then summarised:
“It is clear that … [the plaintiff] suffers from widespread degenerative change affecting his cervical, thoracic and lumbar spine and both knees.
The clinical records do not cause me to alter the opinions stated in my original report.”[59]
[59]Exhibit 5, DCB 42
61One again, I note there is no attempt to analyse the work duties being performed at any time in the relevant sixteen-year period.
62The defendant then had the plaintiff examined by occupational physician, Dr Michael Baynes, who reported on 18 July 2017.[60] Dr Baynes took a “history of injury” as follows:
“… [The plaintiff] advises that he began working as a cleaner at the Peter MacCallum Institute in 2000, working on a full-time basis. He advises that he last worked on 30/6/2016. He advises that he cleaned the wards, toilets and offices and also cleaned the chemotherapy areas after donning protective clothing. He would use a mop and vacuum as well as a buffer and would empty bins and move hard rubbish. He advises that he undertook a pre-employment medical prior to starting work.
Mr Markovic advises that he began developing the slow onset of lower back pain in 2012. There was no injury as such and there was slow onset of the symptoms with pain radiating down the left leg’s lateral aspect. He advises that in 2015 or 2016, he had worsening pain and he also developed left[-]sided neck pain … .”[61]
[60]Exhibit 6, DCB 52
[61]Exhibit 6, DCB 52-53
63As to the “nature of condition or injury”, Dr Baynes noted:
“… [The plaintiff] is suffering from a chronic pain syndrome associated with chronic pain affecting the left side of the neck and the lower back with referred pain into the left limbs. There (sic) is associated with degenerative changes particularly around the C5/6 and C6/7 levels. There is no objective evidence of radiculopathy on clinical examination. There is evidence of illness behaviour and centralisation of pain with positive Waddell's signs and some inconsistency on examination.”[62]
[62]Exhibit 6, DCB 56
64In his Opinion section, Dr Baynes noted that the symptoms progressed with time, starting in 2012 and worsening in 2015 or 2016. However, he noted clinical notes detailing a history of back pain dating back to around 2004 and past referral to a rheumatologist. Also, an entry on 28 September 2012 suggested symptoms dated back twenty years. He considered that this would suggest symptoms and the degenerative condition predated employment. Because there was a history that the symptoms had worsened since ceasing work, Dr Baynes considered that if work was a contributing factor or an aggravating factor to his condition, the symptoms would have improved since ceasing work.[63]
[63]Exhibit 6, DCB 56
65However, with respect to work relationship, Dr Baynes stated:
“At best, I believe that employment was a significant contributing factor to the aggravation of pre-existing degenerative change in the spine. I note that he had worked as a cleaner for 16 years and the work did involve repetitive actions associated with mopping and cleaning and using a buffer.” [64]
[64]Exhibit 6, DCB 57
66Because symptoms had started twenty years prior to 2012, Dr Baynes considered:
“It is likely that the degenerative change seen on radiology would be the same if employment had not taken place.”[65]
[65]Exhibit 6, DCB 57
67Finally, he considered that because he was doing his normal work at the time of cessation of employment, the plaintiff could do those duties with another employer.
68The defendant also had the plaintiff examined by Dr Catherine Bones, consultant occupational physician, who first reported on 9 January 2020 and secondly on 13 November 2020.[66] Dr Bones took a history that the plaintiff had developed problems with his lower back in 2012. He confirmed that there was no specific injury or incident and described his lower back pain being due to “the heavy nature of his work”.[67] Further, she took a history that he took a voluntary redundancy on 30 June 2016 and considered that his back problem was worsening, and there had been no improvement since finishing work.[68] He also explained that he had developed pain in his neck in May 2016, with numbness referring down his left arm to the third, fourth and fifth fingers of the left hand. He again confirmed there was no particular injury or incident, and explained he attributed his back pain to the “heavy nature of his work”. Further, he had not experienced any improvement in his neck condition since stopping work in June 2016.[69] Further, the plaintiff described:
“… constant neck pain and stiffness, with numbness referred down the left arm to the third, fourth and fifth fingers of the left hand. … [The plaintiff] also describes constant left-sided low back pain, worse on bending, that refers to the left hip and down the back of the left leg to the left foot.”[70]
[66]Exhibit 7, DCB 74
[67]Exhibit 7, DCB 76
[68]Exhibit 7, DCB 76
[69]Exhibit 7, DCB 76
[70]Exhibit 7, DCB 76
69I consider that Dr Bones took a detailed history relating to the radiological changes in the cervical and lumbar spine. She also commented:
“… [The plaintiff] attended the appointment on time, casually but neatly attired and presenting as a courteous gentleman who responded in a straightforward manner to my questions and gave a good account of himself.”[71]
[71]Exhibit 7, DCB 79
70Certainly, I consider this observation consistent with the plaintiff’s demeanour in the witnessbox and I considered that he was attempting to answer questions truthfully, subject to the problems with memory referred to above.
71Dr Bones noted the history of symptoms prior to employment, but stated, with respect to examination:
“Findings on examination were of muscular spasm and tenderness to palpation in the upper trapezius muscles bilaterally, worse on the left side than the right side. Restricted movements of the cervical spine … Findings in the lumbar spine were of muscular spasm in the paraspinal muscles to the left of the lower lumbar area and a restriction of forward flexion and lateral flexion to the left. Subjectively, … [the plaintiff] had a reduced straight leg raise on the left side but no clear focal, neurological deficit of either lower limb.”[72]
[72]Exhibit 7, DCB 81
72I would note that the findings of spasm as recorded could be classified as “objective signs”.
73Further, Dr Bones noted:
“Review of the investigations are of findings of cervical and lumbar spondylosis on imaging with possible irritation of the left C7 nerve root at the C6/C7 level of the cervical spine, and likely irritation of the left L3, L4 and S1 nerve roots at the L3, L4 and L5/S1 lumbar spine levels.”[73]
[73]Exhibit 7, DCB 81
74It was Dr Bones’ opinion that:
“…[the plaintiff] has a constitutional, degenerative spondylosis of the cervical and lumbar spine.”[74]
[74]Exhibit 7, DCB 81
75In my view, Dr Bones was not asked, and did not opine, as to whether the nature of the work in question could have contributed to the aggravation and/or deterioration of the underlying conditions as shown by radiological evidence.
76Finally, the defendants desired to rely on the fourth report of pain specialist, Dr Dawson of the Barbara Walker Centre for Pain Management, dated 29 January 2020.[75] In her first report dated 7 August 2019, Dr Dawson recorded the history of care prior to her first consultation to involve the use of “pacing, regular exercise, and sleep hygiene techniques”.[76] At that point, she recorded:
“… [The plaintiff’s] most troublesome current symptom is left-sided lower limb radicular pain in an L5 distribution. He underwent an epidural steroid injection two weeks ago that has improved his pain a little, and improved walking tolerance.”[77]
[75]Exhibit L
[76]Exhibit L, PCB 62
[77]Exhibit “L”, PCB 62
77The plaintiff’s current medication was described as:
“… Pregabalin 75 mg bd, Mersyndol 1 at night and meloxicam 1 tablet twice a week. He is using very little Panadol Osteo and still takes esomeprazole.”[78]
[78]Exhibit “L, PCB 62
78The plan was to allow more time to see if the epidural injection continued to improve the plaintiff’s pain, there would be no change to his current medication and he would continue to exercise as able. Interestingly, Dr Dawson ended “[t]hank you for your ongoing support of this delightful gentleman”.[79]
[79]Exhibit “L”, PCB 62
79In her second report dated 11 September 2019, Dr Dawson noted:
“… [The plaintiff] has ongoing moderate pain in the back and the left leg. An L5-S1 steroid epidural injection six weeks ago has improved his leg symptoms and signs, but now he is struggling with ongoing back pain … .
Clinically today, … [the plaintiff] was tender over the sacroiliac joint. Tests stressing this joint were positive. Neurological examination was normal apart from reduced L5 and S1 sensation.
A review of the imaging of the MIA MRI from November 2017 showed left paracentral disc protrusions at L3-L4 and L5-S1 level with possible irritation of the left L3-L4 and S1 nerve roots … .”[80]
[80]Exhibit “L”, PCB 64
80The plan was that the plaintiff had consented for a left sacroiliac joint injection and would be reviewed. Dr Dawson had referred the plaintiff to the Neurosurgery Clinic for review.[81]
[81]Exhibit “L”, PCB 64
81In her third report dated 6 December 2019, Dr Dawson reported on the original history:
“A 55 year old man, with chronic pain in multiple sites, including neck pain and left sided C6-7 radicular pain, low back and left sided L5 radicular pain, secondary to broad based disc herniation. The pain was described as having built up over years of repetitive physical work as a cleaner, but without clear history of a precipitating cause. His pain is worse with movement, especially flexion, and has had significant impact on his work and life.”[82]
[82]Exhibit “L”, PCB 66
82The plaintiff’s current symptoms were described as:
“Ongoing moderate pain, both in the low back and left leg.
Left leg pain posterior aspect of lower limb, with paraesthesia to his toes.
Examination findings at that time [11 September 2019]: Antalgic gait, less sciatic nerve irritation, pain exacerbated by stressing the left sacro-iliac joint. Diminished sensation over left L5 and S1 dermatomes.
… .”[83]
[83]Exhibit “L”, PCB 67
83The prognosis as that time was as follows:
“1.… [The plaintiff] is likely to have ongoing chronic pain.
2. Chronic pain is able to be managed, and reduced rather than cured.
3.I am unable to give advice regarding … [the plaintiff’s] ability to perform any of the listed activities.
4.It is unlikely that … [the plaintiff] will be able to return to his previous duties.
…
6. I am unable to give a clear picture of future restrictions, as it is hoped he will work with this clinic to improve his overall function.
7. … [The plaintiff] will be reviewed by the author of this letter in January 2020.”[84]
[84]Exhibit “L”, PCB 67
84In her final report dated 29 January 2020, Dr Dawson reported as follows:
“… [The plaintiff] is doing exceptionally well. He described minimal back pain, been walking, exercising in the pool and enjoying life.
A recent increase in pain in the neck and the left shoulder took him to a local physiotherapist who has treated this with good effect.
I believe he has started occasional use of Norspan patches and from the history I gained today, he is using approximately 3 patches, so 1 patch for a week every two months. He finds that this gives him improved function with no side effects.
He has not yet been reviewed by Neurosurgery but pleasingly neither has he had an official letter saying his referral has been declined.
Today he was walking well, moving easily and his left shoulder showed free range of movement.
… [The plaintiff] was encouraged to continue to walk, to pace his activities and to put into practice all of the pain management strategies that he has learned.”[85]
[85]Exhibit L, PCB 68
85In cross-examination, the plaintiff, for his own part, did not accept the history as recorded by Dr Dawson, particularly that he was observed to be moving easily. He gave evidence that he has “[m]ostly gotten worse” since attending Dr Dawson in October 2020.[86] Further, he confirmed the history of restrictions recorded by Dr Sullivan and Dr Rowe in late 2020.[87]
[86]Transcript (“T”) 68
[87]T 70
86During cross-examination, the plaintiff was shown recent video surveillance taken on 12 and 18 May 2021.[88] The defendant submits that the film demonstrates the plaintiff walking quickly and freely over thirty-minute periods on both days. The surveillance also demonstrated the plaintiff washing and vacuuming his four-wheel drive vehicle for approximately twenty minutes on the second day. When asked whether he agreed he showed no restriction or discomfort in the video, the plaintiff explained his presentation as “good days and bad days … and medication”[89] consumption. Further, the defendant submits the video demonstrates:
“In addition to walking quickly and freely, the video also showed the plaintiff:
(a)swinging both arms freely;
(b)turning his neck sharply to the left;
(c)bending from the waist for extended periods;
(d)reaching and applying pressure with a long-handled brush using both arms;
(e)using a pressure gun with both arms;
(f)using a hose above shoulder height.”[90]
[88]Exhibit 1
[89]T78
[90]Defendant’s Submissions at paragraphs [19]-[20]
87It is further submitted the plaintiff’s presentation in the video surveillance is in direct contrast to both his presentation to, and histories obtained by, Dr Sullivan and Dr Rowe, together with many of the alleged restrictions contained in his affidavits.
88The plaintiff’s counsel contest these submissions and submit:
“The video surveillance comes via four periods. They are:
(a) 10 March 2017 – 8 hours of surveillance.
11 March 2017 – 7 hours of surveillance.
Total: 15 hours of surveillance for 4 minutes 17 seconds of video.
(b) 30 July 2019 – 7 hours of surveillance.
5 August 2019 – 8 hours of surveillance.
Total: 15 hours of surveillance for 7 minutes 27 seconds of video.
(c) 26 December 2019 – 4 hours of surveillance.
27 December 2019 – 4 hours of surveillance.
28 December 2019 – 3 hours of surveillance.
7 January 2020 – 4 hours of surveillance.
Total: 15 hours of surveillance for an indeterminant amount of minutes, perhaps 8.
(d) 12 May 2021 – 5 hours of surveillance.
15 May 2021 – 5 hours of surveillance.
8 May 2021 – 5 hours of surveillance.
Total: 15 hours of surveillance for approximately 35 minutes of video.”[91]
[91]Plaintiff’s Submissions in Support of Serious Injury at paragraph [35] at page 11
89The plaintiff then submits:
“… the plaintiff has been observed since March 2017 to May 2021 for a period of approximately 60 hours of surveillance over 11 days, 3 of which produced no film for a total of 55 minutes or thereabouts.
The only medical practitioner for the defendant to have seen any video, being the August 2019 and January 2020 film, was Dr Bones who stated that it did not cause her to alter her opinion.”[92]
(Footnote omitted.)
[92]Plaintiff’s Submissions in Support of Serious Injury at paragraphs [36]-[[37] at pages 11-12
90Further, the plaintiff’s counsel submit:
“On the other hand, Dr Akil, Dr Sullivan and Dr Rowe have viewed the 2019 and 2020 video and they agree that this film did not alter their opinions.[93]
The most recent video taken in May 2021 was not shown to any doctor and its impact in this Court should be judged in accordance with the principles in the case of Church v. Echuca Regional Health.”[94]
[93]Exhibit O, PCB 100 and Plaintiff’s Submissions in Support of Serious Injury at paragraphs [17] and [21], pages 6 and 7
[94][2018] VSCA 65 at paragraph [100] and Plaintiff’s Submissions in Support of Serious Injury at paragraphs [38]-[39], page 12
91Accordingly, whether any of the doctors would have expressed a conclusion that the plaintiff had not given frank and accurate accounts to the doctors is speculative.
92Further, plaintiff’s counsel submit:
“A significant part of the 2021 video demonstrated the plaintiff walking which is precisely what Dr Dawson encouraged the plaintiff to do in January 2020.[95] This is exactly what the plaintiff told the Court.[96] The plaintiff was not questioned nor was he ever specifically asked about his capacity to walk or wash his vehicle prior to the video being played. To use the colloquial expression, the defendant failed to ‘shut the gates’.
Given that there is less than an hour of film over a period of 4 years, it is submitted in the absence of any medical practitioner commenting upon the most recent 2021 film, the video surveillance is of limited value and does not translate into a capacity for work which is suitable for the plaintiff, who has worked as a fitter and turner and a cleaner. They are the only two jobs he has known in his working life and they are both physical in nature.”[97]
[95]Exhibit L at PCB 67
[96]T85, Lines (“L”)7-17
[97]Plaintiff’s Submissions in Support of Serious Injury at paragraphs [41]-[41], page 12
Loss of earning capacity
93It is clear enough that taking a line through Dr Dawson’s ultimate report and the most recent surveillance taken of the plaintiff, that he may be able to undertake sedentary or light tasks relating to basic manual work. In effect, the plaintiff’s counsel submit that the plaintiff is not able to carry out “suitable employment” as defined in s3 of the Act, principally having regard to:
(a) the nature of the plaintiff’s incapacity with respect to his spine in accordance with the medical opinion referred to above;
(b) the nature of the plaintiff’s pre-injury employment; and
(c) the plaintiff’s age, education skills and work experience.
94It may well be, based on the material I have referred to, the plaintiff would have a physical capacity to undertake light duties if such a job were available to him and would take into account the need for him to have appropriate rest periods and not suffer from the effects of his medication. However, as Ashley and Kaye JJA stated in Richter v Driscoll & Ors:[98]
“[R]eturn to work in employment … requires more than that a physical capacity to engage in a task or tasks.”
[98](2016) 51 VR 95 at paragraph [76]
95The employment must be as specified in the definitions of “no current work capacity” and “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise” –
and their Honours warned –
“paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[99]
[99]Richter v Driscoll & Ors (ibid) at paragraph [76]
96Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[100]
[100]Richter v Driscoll & Ors (ibid) at paragraph [77]
97Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“[W]hether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[101]
(Emphasis added.)
[101]Richter v Driscoll & Ors (ibid) at paragraph [95]
98They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[102]
[102]Richter v Driscoll & Ors (ibid) at paragraph [96]
99Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[103]
(Emphasis added.)
[103]Richter v Driscoll & Ors (ibid) at paragraphs [143]-[145]
Analysis
100In my view, the plaintiff is essentially a witness of truth, as referred to above, and as is noticed by the medical practitioners I have referred to. Accordingly, the largely uncontested restrictions set out in his affidavits inform, to a large extent, his capacity to return to work “as a settled member of the workforce”.
101In all the circumstances, I am satisfied that the plaintiff does not return “powers of labour as a merchantable article”.[104]
[104]Richter v Driscoll & Ors (ibid) at paragraph [96]
102I also consider that the state of the plaintiff’s spine and the impairment occasioned thereby, when compared to the pre-existing impairment as at the commence of his employment in 2000, is such that the incremental impairment is one of suitability for the employment engaged in compared to not being able to perform suitable work.
103Further, I accept, that although there is an absence of specific injury during the impairment, the nature of the employment was a significant contributing factor to the aggravation and deterioration of the spinal condition, particularly at the spinal and lumbar levels as described.
104Accordingly, leave will be granted to the plaintiff to issue proceedings for economic loss damages with respect to impairment of the spine arising out of his employment.
105Further, in accordance with the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[105] leave will also be granted to issue proceedings for pain and suffering damages with respect to the spinal impairment.
[105][2009] VSCA 170
106I will hear the parties as to any further orders.
- - -
0
3
0