Marotti v VWA
[2018] VCC 852
•20 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02417
| MARKUS MAROTTI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 & 14 June 2018 | |
DATE OF JUDGMENT: | 20 June 2018 | |
CASE MAY BE CITED AS: | Marotti v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 852 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – pain and suffering – pecuniary loss - whether consequences are “very considerable”
Legislation Cited: Accident Compensation Act 1985; Transport Accident Act 1986
Cases Cited: Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170;
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr R Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr N Griffin | Russell Kennedy |
HER HONOUR:
Preliminary
1 Mr Marotti commenced working for AJ & EA Berry Pty Ltd in 1994, laying synthetic grass on bowling greens, in Victoria, and on occasions, interstate and overseas. Mr Marotti said that he loved his job, and that he derived much satisfaction from his belief that he was responsible for installing the best quality bowling greens in Australia.
2 On 19 January 2011, Mr Marotti suffered an injury to his lower back, whilst lifting a 350-400 kilogram roll of synthetic grass with a work colleague (“the lifting incident”).
3 Mr Marotti has not worked since the day he suffered his injury and claims that, as a consequence of this injury, he suffers constant lower back pain and is unable to return to any form of paid employment.
4 Mr Marotti claims to have suffered serious consequences as a result of this lower back injury, both in respect of his pain and suffering and his loss of earning capacity. In order for Mr Marotti to be entitled to claim common law damages, the impairment to his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (ACA).
5 The defendant accepted that Mr Marotti suffered a lower back injury at work, but disputed that it caused him to suffer a serious injury in respect of both his pain and suffering and loss of earning capacity.
6 Only Mr Marotti was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
7 For the reasons which follow, I am satisfied that Mr Marotti has satisfied the requisite loss of earning capacity test, such that he should be granted leave to commence common law proceedings for both pain and suffering and pecuniary loss damages.
Mr Marotti’s life before he suffered his back injury
8 Mr Marotti is 45 years of age and lives with his de facto partner and their four children. He left school during Year 11 and then completed a plumbing apprenticeship. He subsequently worked as a machine setter for a few years, before commencing employment with AJ & EA Berry Pty Ltd as a labourer and synthetic grass technician.
9 Mr Marotti said that he had suffered migraines since he was a child. He also recalled having once suffered a right knee injury at work, as well as some right elbow problems, which were treated with myotherapy. Mr Marotti did not believe he took any time off work when he suffered either of these injuries.
Mr Marotti’s lower back injury and its consequences
10 On 19 January 2011, whilst installing a bowling green in Benalla, Mr Marotti suffered injury, whilst lifting a heavy role of synthetic turf with another work colleague. He said that he stumbled and fell backwards. Mr Marotti said that he suffered pain in his back, but that he remained at work, and simply took it easy for the remainder of the day. The following day, Mr Marotti continued to feel pain and weakness in his right leg, and, at one point later that day, whilst at the hotel in which he was staying, he lost all sensation in his right leg and control of his bladder.
11 Mr Marotti then drove back to Melbourne and consulted his general practitioner, Dr Monica Patel, on 21 January 2011. Dr Patel prescribed Mr Marotti some Voltaren medication.
12 On 24 January 2011, Mr Marotti attempted to attend work on light duties. He was given a mower in order to drive over and flatten the synthetic grass. After a few hours, Mr Marotti said that his pain increased such that he was forced to cease work. Mr Marotti has not worked since that date.
13 On 22 February 2011, an MRI scan was taken of Mr Marotti’s thoracic and lumbosacral spine. It was reported as demonstrating mild desiccation of L2-3 and L4-5 and mild facet arthropathy at L4-5 and L5-S1 bilaterally. No disc protrusion or radiculopathy was noted.
14 As Mr Marotti continued to experience lower back pain, Dr Patel referred him to pain medicine specialist, Dr Clayton Thomas, whom he consulted on 7 July 2011. Dr Thomas noted that Mr Marotti perceived his back pain to be his dominant problem, and noted that it was slightly worse on the right side. Dr Thomas also noted that Mr Marotti complained of some left groin pain and pain in his feet.
15 Dr Thomas performed a neurological examination of Mr Marotti and noted symmetrical reflexes and normal straight leg raising. He also noted that Mr Marotti suffered hypoalgesia to the anterior lateral thigh and hypaesthesia over the same area.
16 Dr Thomas considered that Mr Marotti suffered an unusual pain syndrome and noted a neuropathic component to his presentation. He initially prescribed Endep, but soon thereafter prescribed Gabapentin. Dr Thomas was hopeful that such medication would decrease the sensitivity in Mr Marotti’s right thigh.
17 Dr Thomas subsequently referred Mr Marotti to the multidisciplinary team at the Victorian Rehabilitation Centre, where it was recommended that he undertake a pain management program. Arrangements were then made for Mr Marotti to commence this program on 19 October 2011.
18 On 30 November 2011, whilst undertaking the rehabilitation program, Mr Marotti said that he became very dizzy and had trouble speaking and breathing. He said the symptoms passed but that, the following day, he experienced chest pain, light-headedness and slurring of his speech. Mr Marotti subsequently attended the Angliss Hospital, where a variety of investigations were performed. This included a negative stress echo and a normal cardiac exercise test.
19 Whilst undertaking the rehabilitation program, Mr Marotti said that he was advised he would be capable of performing some light duties. He recalled having made enquiries at that time with his former employer, who informed him that a medical certificate would be required, in relation to those duties he could and could not perform. Mr Marotti said that he subsequently obtained this certificate from Dr Patel but that, when he provided it to his former employer, he was advised that they could not accommodate his restrictions, and that his pre-injury duties were the only ones available.
20 In April 2012, Mr Marotti was referred to neurologist, Dr Mark Faragher, in relation to the episode he experienced on 30 November 2011. Accordingly, Dr Faragher arranged for Mr Marotti to undergo an MRI scan of his brain, as well as an EEG. Both were reported as normal. Dr Faragher was then of the opinion that “things looked good from the neurological side”.
21 In May 2012, Mr Marotti underwent a vocational assessment with Ayers Management Services (AMS). It was noted that, based upon his prior work experience, Mr Marotti had good knowledge of synthetic grass and its installation, as well as skills in machine operation, staff supervision and management, together with high level communication skills, an ability to read and write English and good numerical skills. It was also noted that Mr Marotti was a qualified plumber. AMS then considered that the following jobs would be suitable for Mr Marotti:
(i) supervisor of synthetic grass installation;
(ii) delivery/truck driver;
(iii) retail sales assistant;
(iv) forklift operator (would require training);
(iv) excavator operator (would require training).
22 Mr Marotti said that he can recall having then spoken to the vocational assessor, who made attempts to ascertain whether or not Mr Marotti could obtain employment with the competitors of his former employer. Mr Marotti said, however, that in a practical sense, there was no alternative work available with any of the competitors, each of whom had very limited business, on the basis that his former employer was the leading company in the installation of synthetic grass.
23 In June 2012, Dr Patel certified Mr Marotti as fit for light duties, with restrictions including that he avoid repetitive movements of the lower back; avoid standing and sitting for more than 15 minutes at a time; avoid lifting weights greater than 5 kilograms; and avoid frequent bending, pulling and pushing.
24 At that time, Dr Patel prescribed Neurontin, 800 milligrams three times per day, Panadeine as required and Voltaren, 25 milligrams as required. Dr Patel stated that such medication was required for the treatment of Mr Marotti’s neuropathic pain.
25 In February 2013, Dr Faragher arranged for some nerve conduction studies to be performed on Mr Marotti. These were reported as demonstrating absent left and right lateral femoral cutaneous nerve of thigh sensory nerve action, suggestive of bilateral neuralgia paraesthetica.
26 On 22 April 2013, Mr Marotti was reviewed by Dr Thomas, who noted that, in respect of the bilateral neuralgia paraesthetica, Mr Marotti’s symptoms were worse on the right side. He considered that the neuralgia paraesthetica was “not the total picture as he had more widespread problems”.
27 During this period, Mr Marotti continued to consult Dr Patel on an ongoing basis, as well as receiving deep tissue massage and cupping from a myotherapist.
28 In March 2014, Mr Marotti was referred to neurosurgeon, Mr S Girish Nair. At that time, Mr Nair obtained a history from Mr Marotti in relation to the lower back pain he had suffered in the lifting incident, as well as the symptoms of numbness in his right thigh. At that time, Mr Nair noted that Mr Marotti’s problems “were more in the back than the legs” and that Mr Marotti sought advice as to whether or not anything could be done to improve his situation.
29 Upon further review in June 2014, Mr Nair considered there was no obvious pathology requiring neurosurgical intervention, and he recommended that Mr Marotti continue with conservative treatment.
30 In his report dated 9 February 2015, Mr Nair stated that the working diagnosis for Mr Marotti, as at the time of his last visit, was meralgia paraesthetica. Mr Nair stated that he had investigated Mr Marotti in relation to his symptoms of back and right leg pain, to rule out an obvious compressive pathology, but that the MRI did not demonstrate any such problems. In August 2016, Mr Marotti was referred to rehabilitation physician, Dr Christopher Woodgate, for advice regarding his severe back pain, together with numbness of his right lower limb and foot. Dr Woodgate noted that Mr Marotti described his back pain as being “a sore deep pain”, and his right lower limb pain on his lateral thigh as being similar to a burning sensation. It was noted that such pain had reduced slightly over the last few years.
31 Dr Woodgate considered that Mr Marotti had a complex pain history with right neuralgia paraesthetica, together with lower back pain and right lower limb somatic referred pain. Dr Woodgate recommended a reduction in Mr Marotti’s medication.
32 Upon a further review on 20 October 2016, Dr Woodgate noted that Mr Marotti had attempted to reduce his Gabapentin medication, but that his leg pain had worsened. It was also noted that Mr Marotti continued to complain of frequency nocturia. Dr Woodgate recommended that Mr Marotti be reviewed by an urologist.
33 In July 2017, Mr Marotti was examined by urologist, Dr George Koufogiannis, who obtained a history from Mr Marotti that he had not suffered urinary tract symptoms prior to suffering his lower back injury. Dr Koufogiannis arranged for a further MRI scan to be performed on Mr Marotti’s spine.
34 On 12 July 2017, an MRI scan was taken of Mr Marotti’s lumbosacral spine. It demonstrated degenerative changes, but no significant spinal stenosis or neural exit foraminal narrowing, and no nerve root impingement.
35 Dr Koufogiannis then recommended that urodynamic studies be performed to ascertain the cause of Mr Marotti’s incontinence issues, and whether or not they were related to his spine. However, Mr Marotti said that, as the study was not approved by the statutory insurer, the test has not yet been performed.
36 In his last report dated 29 March 2018, Dr Patel noted that Mr Marotti has continued to experience ongoing lower back and right leg pain and numbness since his work injury in 2011. Dr Patel was of the opinion that Mr Marotti had no capacity for pre-injury duties and that such incapacity was likely to be permanent. However, she said that Mr Marotti could undertake light duties which did not involve repetitive back movements, heavy lifting, or standing for long periods, provided that such light duties were part-time and with short days.
37 Mr Marotti said that he continues to remain under the care of Dr Patel, whom he consults every one to two months. He said that she continues to prescribe Gabapentin medication, and that he currently takes 600 milligrams twice per day, and 800 milligrams once per day. Mr Marotti said that, whilst he has tried to reduce his Gabapentin medication intake from time to time, he found that it increased his leg and back pain. He also said that Dr Patel prescribes him Panadeine, Neurofen Plus and Voltaren 25, which he takes when his pain is severe.
38 Mr Marotti said that he has also consulted a myotherapist over the last few years, in order to obtain myotherapy treatment, and that, in the last year, he may have attended for such treatment once every two months. Just prior to Christmas, Mr Marotti consulted a myotherapist twice a week for approximately two to three months. Mr Marotti also said that he consulted a physiotherapist two weeks ago, but that this was the first physiotherapist he had seen in a long time. He said that he paid for such treatment himself.
39 In addition to his physical complaints of pain, Mr Marotti has suffered depression as a consequence of his ongoing pain and inability to return to work.
40 In July 2014, Mr Marotti obtained psychological treatment from psychologist, Ms Adena Silverstein. Mr Marotti said that he continued to receive psychological treatment from Ms Silverstein over a period of time, but that, when she recently moved interstate, he began to consult a new psychologist.
41 Mr Marotti said that his lower back pain is continuous. In his oral evidence, when asked to rate his pain levels out of 10, Mr Marotti said that, at its lowest, the pain is about 4 out of 10. When the pain is at this level, Mr Marotti said that he is able to perform activities such as shopping, taking out the rubbish bins, or carrying firewood from his backyard to his house. He said that such activities cause an increase in his pain, and that he usually tries to rest, by lying down between 11.00am to 2.00pm. He said that this rest then enables his pain levels to reduce, such that he is able to perform activities in the afternoon and evening, such as cooking dinner for his family. Mr Marotti said that, at worst, his pain is 9 out of 10.
42 Mr Marotti said that he tries to do what he can around the home. He said that if he mows the lawn, he will need a break after about 10 minutes, and will then need to lie down. Mr Marotti said that he can also prune the bushes in the garden for a short time, but that after about 10 minutes, he will need to move to another job.
43 Mr Marotti said that he can do some cleaning, such as light vacuuming for about 30 minutes, following which, he will either lie down or do a different activity.
44 Mr Marotti said that he is limited in his ability to sit and stand, and that when standing, he needs to move around and change his position frequently. He said that he can travel for up to one and a half hours in a car, as he is able to lie back in the car and move his position.
45 Mr Marotti said that he does not drive his car, save for rare occasions, such as when his partner is unable to drive the children to an activity. He said that he is too scared to drive due to his right leg pain, and said that he is worried he will not be covered by insurance.
46 Mr Marotti said that, because of his limited ability to stand, he is able to watch one of his children playing a game of football on a Sunday but that, by the end of the game, he is very sore. He said that he can recall there having been only one occasion in which he was able to watch both his son and daughter play football games on the same day. He also said that he has not been able to go to family events after football games on a Sunday night because his pain is too great. Mr Marotti also said that on Mondays, he is then “fairly average.”
47 Mr Marotti said that he recently celebrated his son’s birthday, by taking him and his friends to the movies. He said that he had to put off the party for a month, however, until the long weekend, when his children did not have football on the Sunday. He said that if he had tried to hold the party on a normal weekend, and had taken the boys to the movies on the Saturday, he would not have been any good to watch the football on the Sunday. Mr Marotti said that on this particular day, he took three Nurofen Plus at approximately 6.30am, as he knew he would have difficulty sitting in the cinema. He said that he was able to move about his chair during the movie, but that, following the movie, he spent the afternoon lying down at home, and was not able to go with his son to eat as planned.
48 Mr Marotti said that he has undertaken two computer courses, the first of which was at a basic level, and the second of which was slightly more advanced. He said that by the end of the advanced course, he was able to send emails and copy and paste documents. However, Mr Marotti said that he has not retained such knowledge, and does not now recall how to send or receive an email.
49 Mr Marotti gave evidence that he had considered the possibility of working on his dad’s cattle farm. He said that he has tried to help out on the farm, but that he was only able to work for a maximum of one hour. Mr Marotti also said that “the work was just too heavy”.
50 Mr Marotti said that he has not applied for any jobs since having suffered his injury, and is not really sure what he could even do given his injuries. He did, however, say that he wished that he could work, and that he previously loved his old job.
Medico-legal evidence
51 Mr Marotti’s solicitors arranged for him to be examined by neurosurgeon, Professor Richard Bittar, in February 2018. In his report dated 12 February 2018, Professor Bittar diagnosed Mr Marotti as suffering an aggravation of lumbar spondylosis, and stated that, in his opinion, the injury occurred in the lifting incident, and his work remained a significant contributing factor to his ongoing pain, disability and requirement for treatment.
52 Professor Bittar recorded that Mr Marotti reported the average severity of his lower back pain to be 6 out of 10 at its lowest, with a maximum of 8 out of 10. Professor Bittar noted that Mr Marotti’s lower back pain was exacerbated by sitting, standing, bending, twisting, lifting, pushing, pulling, straining or walking. It was further noted that Mr Marotti stated he could sit or stand for 10 to 15 minutes, and could walk for 5 to 10 minutes, before his pain flares up.
53 Professor Bittar was of the opinion that Mr Marotti’s prognosis was poor and said that, given it has been some seven years since the incident, during which time he has remained significantly symptomatic and disabled, it is highly likely that he will continue to suffer from significant pain and disability into the foreseeable future.
54 Professor Bittar was of the opinion that Mr Marotti is totally incapacitated for work and that such incapacity is permanent. After considering the Defendant’s AMS report, Professor Bittar confirmed that he would not consider any of the proposed jobs to be suitable employment for Mr Marotti, and stated that, undertaking the proposed employment options of a forklift operator or excavator operator, would most likely further injure his back, rendering him more symptomatic than his present state.
55 Mr Marotti’s solicitors also arranged for him to be examined by pain specialist and anaesthetist, Dr Richard Sullivan, on the same day as he consulted Professor Bittar. In his report dated 12 February 2018, Dr Sullivan noted that Mr Marotti reported having experienced back pain that was substantially worse than his leg pain. It was noted that his back pain was at least, 6 out of 10, but that it frequently flared up to 9 out of 10.
56 Dr Sullivan noted that Mr Marotti stated that he has a “sitting tolerance of around about 10 minutes, 30 minutes of his taking medications he has a standing tolerance of some 10 to 15 minutes.”
57 Dr Sullivan diagnosed Mr Marotti as suffering chronic lower back pain of a likely organic origin. He stated that Mr Marotti also had chronic right-sided sciatica, despite there being no obvious neural compression, as well as investigation evidenced bilateral meralgia paraesthetica.
58 Dr Sullivan was of the opinion that the nature of the injury, as described by Mr Marotti, was consistent with the onset of his symptoms, and he considered the presentation to be consistent with an organically based lower back injury, that has progressed to a chronic lower back pain, with the associated functional limitations.
59 Dr Sullivan noted that Mr Marotti had substantial limitations and restrictions in regards to his daily activities such as walking, his sitting and standing tolerances, his driving tolerances and his ability to bend or twist, to carry weights or to kneel or squat. Dr Sullivan expected such limitations to continue indefinitely.
60 Dr Sullivan was of the opinion that Mr Marotti will remain out of work indefinitely and that such an incapacity for work will be permanent. After having considered the AMS report, Dr Sullivan stated that, in his opinion, none of the proposed jobs were suitable employment options for Mr Marotti.
61 The defendant arranged for Mr Marotti to be examined by neurologist, Dr Janaka Seneviratne, on three occasions. In his first report dated 6 August 2012, Dr Seneviratne, diagnosed Mr Marotti with a facet arthropathy or soft tissue injury in the lumbar spine. Dr Seneviratne was not convinced that the right sided meralgia paresthesia that Mr Marotti complained of was entirely due to the work related injury.
62 In this report, Dr Seneviratne recorded that Mr Marotti “feels that his back pains have significantly improved”. This was not put to Mr Marotti in cross- examination, and it is unknown whether or not he would have accepted having given such a history to Dr Seneviratne.
63 At that time, Dr Seneviratne was of the opinion that, whilst Mr Marotti was not fit for his pre-injury duties, he was fit for modified pre-injury duties, provided that he not lift any objects heavier than 10kg or engage in any duties that would require repetitive movements of his lower back or frequent bending or pulling actions.
64 In his second report dated 4 February 2013, Dr Seneviratne again confirmed that, in his opinion, it was likely that Mr Marotti’s lower back problems were due to soft tissue injuries.
65 Dr Seneviratne confirmed his previous opinion in respect of Mr Marotti’s work capacity.
66 In his final report dated 18 March 2013, Dr Seneviratne, having been provided with a copy of the nerve conduction studies report performed by Dr Mark Faragher, was of the opinion that Mr Marotti had bilateral absent lateral femoral cutaneous sensory responses. He stated that this could be a normal finding given the technical factors, and said that such a finding would be in keeping with a right sided meralgia paraesthetica.
67 Having also reviewed the AMS report, Dr Seneviratne confirmed that, in his opinion, Mr Marotti could not return to his pre-injury duties, but was fit to undertake modified work duties. Dr Seneviratne was of the opinion that all the proposed employment options were suitable, provided that Mr Marotti not lift weights of more than 10kg, and restrict the frequency with which he engaged in bending and pulling/pushing manoeuvres. Further, he stated that Mr Marotti should be restricted from standing and driving for prolonged periods of time. Dr Seneviratne also noted that Mr Marotti should have regular breaks.
68 The Defendant also arranged for Mr Marotti to be examined by neurosurgeon, Dr Graeme Brazenor, in May 2017. In his report dated 23 May 2017, Dr Brazenor was of the opinion that Mr Marotti sustained no significant lumbar spinal injury in the lifting incident. In particular, he noted that the MRI scan dated 22 February 2011, only referred to age-related degenerative changes in the lumbar spine with no “sign of injury.” Dr Brazenor stated that the scan:
“is reported to show no significant pain generator. Therefore Mr Marotti’s allegation that not only has he had ongoing pain and disability, but that it has not resolved and continues today is untenable.”
69 I consider this to be an unusual comment for a specialist to have made, in circumstances where it would appear Dr Brazenor has not contemplated the possibility, that the degenerative changes in Mr Marotti’s lumbar spine, could have been rendered symptomatic by the lifting incident.
70 On examination, Dr Brazenor considered that Mr Marotti’s straight leg raising was “allegedly limited on either side by apparently severe pain...”
71 Dr Brazenor noted that there was an absent pin prick sensation in the lower lateral leg just above the ankle, which “could conceivably be the lower part of the left L5 dermatone.” Overall, however, Dr Brazenor considered there to be clear evidence of Mr Marotti having feigned weakness, and clear signs of malingering during the examination.
72 In addition to those comments, Dr Brazenor stated that Mr Marotti’s “allegation of incontinence is inexplicable” and said that he did not think it possible for two men to move a 400kg roll of turf. Such comments by Dr Brazenor are beyond his area of expertise. My reading of his report is that he traversed into the role of an advocate, and I am therefore not assisted by his opinion.
73 However, for the sake of completion, I note that Dr Brazenor was of the opinion that Mr Marotti was physically capable of immediately returning to full-time work, and that he could be expected to work to normal retiring age. Having reviewed the AMS report, Dr Brazenor was of the opinion that Mr Marotti could perform the roles of synthetic grass installation, retail sales assistant, forklift operator and excavator operator on a full-time basis. Dr Brazenor did not think that he could recommend the position of delivery/truck driver, in circumstances where such a role might have required Mr Marotti to handle the freight.
Mr Marotti’s credibility and reliability
74 I considered Mr Marotti to be a very impressive witness, who gave evidence in a simple, straightforward and credible manner. He openly conceded the different activities he was able to perform around the home, as well as his ability to attend the sporting matches of his children.
75 The defendant showed over one hour of video footage of Mr Marotti, spanning a period of 6 days throughout 2017 and 1 day in 2018. In the numerous clips, Mr Marotti was seen walking from his car in and out of shopping centres, in his front yard, as well as at a football match, and taking his son and his son’s friends to the movies. In much of this video surveillance, Mr Marotti is seen to move in a slow yet unrestricted manner. However, when he is standing, he frequently moved around and rarely stood in the one spot for more than a short period of time.
76 On 26 July 2017, Mr Marotti was seen to push a carpet cleaning machine to his car, before then waiting for his wife to assist him with loading it into the car. I considered this to have demonstrated his caution in lifting heavy objects.
77 The defendant submitted that Mr Marotti’s attendance at the movies was “totally in contradistinction to what he has complained to the doctors”. I do not accept this submission. Having watched the surveillance footage of Mr Marotti attending the movies, and having heard his evidence, I accept that he delayed the birthday party so as to enable it to take place on a weekend without sport. I accept that Mr Marotti took pain killing medication, in anticipation of having to sit for a prolonged period. I consider that in the 40 - 50 minutes prior to the movie starting, Mr Marotti moved about the cinema foyer area, rarely standing still. I also accept that, after the movie, due to his increased back pain, Mr Marotti could not join his son and his friend’s for a meal out. I consider that Mr Marotti’s description of this event demonstrated the ways in which he has adapted his activities, whilst trying to remain an active father with his children.
78 Overall, I consider the video surveillance of Mr Marotti to have confirmed the relatively restricted life that he now leads. The defendant submitted that Mr Marotti was unreliable by virtue of the varying accounts he provided as to his levels of pain. In particular, the defendant highlighted the different pain levels Mr Marotti reported to Professor Bitter and Dr Sullivan, whom he consulted on the same day. It was then noted that in his oral evidence, Mr Marotti said that, at best, his lower back pain is 4 out of 10 but that it can get to 9 out of 10. I am satisfied, however, that when reporting pain levels on a score out of 10, it is not uncommon for there to be variations both within a day, and from day to day. I do not consider such discrepancies to have adversely impacted upon Mr Marotti’s reliability.
79 Finally, the defendant submitted that Mr Marotti lacked motivation. I disagree with such a submission. Evidence given by Mr Marotti in respect to his self-funded treatment, his attempt to work at his parent’s farm and his continuing contribution to his family life, indicate that Mr Marotti is a man who is not lacking in motivation.
80 On the whole, I have no hesitation in accepting Mr Marotti’s evidence in its entirety.
Mr Marotti’s lower back injury and the relevance, if any, of the meralgia parasthetica
81 Professor Bittar diagnosed Mr Marotti was suffering from an aggravation of lumbar spondylosis, and Dr Sullivan diagnosed an organically based lower back injury.
82 Dr Seneviratne considered that Mr Marotti suffered a soft tissue injury to his lower back.
83 Dr Brazenor considered that Mr Marotti suffered degenerative changes only, but did not comment on whether or not such degenerative changes were rendered symptomatic in the lifting incident. For the reasons explained above, I am not assisted by Dr Brazenor’s opinion.
84 I am satisfied that Mr Marotti suffered a mechanical lower back injury in the lifting incident and that his lower back pain has persisted since that time.
85 In relation to the meralgia parasthetica, Mr Marotti did not claim this condition was sustained in the lifting incident, nor did he seek to relate it to his lower back injury. As an unrelated medical condition, I must disregard it in my assessment of the consequences of his spinal impairment.
Mr Marotti’s claim for loss of earning capacity as a consequence of his lower back injury
86 To succeed in his application, Mr Marotti bears the onus of satisfying me that, as at the date of the hearing, that as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Marotti is capable of earning, whether in suitable employment or not.
87 In undertaking this task, I must compare what Mr Marotti is capable of earning in suitable employment with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects his earning capacity had he not suffered the injury:
(a) the gross income that he was earning from personal exertion; or
(b) the gross income he was capable of earning from personal exertion; or
(c) the gross income he would have earned from personal exertion; or
(d) the gross income he would have been capable of earning from personal exertion, during that part of the period within three years before and after the injury.[1]
[1]s134AB(38)(f) of the ACA
88 Section 134AB(38)(a) of the ACA provides that income from personal exertion has the same meaning as in s6(2) of the Transport Accident Act 1986 (TAA). The TAA defines “income from personal exertion” to include:
“The proceeds of any business carried on by that person either alone or in partnership with any other person …”[2]
[2]s6(2)(b) of the TAA
89 Mr Marotti earned his income through his own business, as well as being sub-contracted to work exclusively for his deemed employer, AJ & EA Berry Pty Ltd. As he earned his income through this business, his pre-injury earning capacity should be assessed in the context of the definition of income from personal exertion.
90 In the financial year 2010-2011, Mr Marotti’s business earned $89,421, and he had business expenses of $10,554. Therefore, his gross income from personal exertion was $78,867. The parties agreed that this was the figure which most fairly reflected his without injury earning capacity.
91 For Mr Marotti to be entitled to pecuniary loss damages, he must satisfy me that he suffers a loss of earning capacity of 40 per cent or more. In circumstances where his without injury earning capacity was agreed at $78,867, Mr Marotti must satisfy me that he cannot earn more than $47,320 per annum, or $910 per week, as a consequence of his lower back injury.
92 Professor Bittar and Dr Sullivan were both of the opinion that Mr Marotti is indefinitely incapacitated for all work.
93 Dr Seneviratne was of the opinion that, whilst Mr Marotti cannot return to his pre-injury duties and hours, he has the capacity to undertake modified duties, with restrictions on lifting weights of more than 10kg, and restrictions on frequent bending and pulling/pushing manoeuvres, standing for prolonged periods of time and driving for prolonged periods of time. He also said that Mr Marotti should have frequent breaks. Dr Seneviratne was of the opinion that, if such restrictions were imposed, all the employment options identified in the AMS Vocational Assessment report would be suitable. Dr Seneviratne did not state for how many hours Mr Marotti could work in such modified duties. In circumstances where Dr Seneviratne has not seen Mr Marotti since March 2013, however, I gain little assistance from his report.
94 Dr Patel was of the opinion that, whilst Mr Marotti cannot return to his pre-injury duties, he has the capacity to undertake light duties, which do not involve repetitive back movements, heavy lifting, or standing for long periods. He said that such light duties would need to be undertaken on a part-time basis and with short days.
95 I consider that Dr Patel is best placed to make observations in relation to Mr Marotti, having now attended upon him on a regular basis for the last seven years. Whilst Dr Patel does not specify the number of hours he considers Mr Marotti capable of working, I am satisfied that, as a consequence of his lower back injury, Mr Marotti has, at best, the capacity to perform suitable employment for 12 hours per week, being 3 alternate days of 4 hours. I consider this finding to be consistent with the opinions of Professor Bittar and Dr Sullivan, and my acceptance of Mr Marotti’s evidence that he needs to lie down to rest in the middle of the day, and that he is no good on the day after having watched a football match. Given his reports of lower back pain, I am satisfied that Mr Marotti could not work beyond those hours on a reliable and consistent basis.
96 As I am satisfied that his capacity to work in suitable employment is limited to just 12 hours per week, Marotti will suffer the requisite 40% loss of earning capacity if he were to perform any of the jobs proposed in the AMS report.
97 I am satisfied that this loss of earning capacity will be permanent.
98 Once a threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for Mr Marotti meet the “very considerable test”.[3]
[3]s134AB(8)(c) of the ACA
99 Given my acceptance that Mr Marotti’s lower back injury restricts him to, at best, only part-time work, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
100 As Mr Marotti has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[4]
[4]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
101 I am satisfied that Mr Marotti suffers a serious injury to his lower back arising as a consequence of the lifting incident and that the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
102 I will make the consequent orders.
0