Martin v Victorian WorkCover Authority
[2017] VCC 371
•7 April 2017
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03866
| PETER MARTIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 20 March 2017 | |
DATE OF JUDGMENT: | 7 April 2017 | |
CASE MAY BE CITED AS: | Martin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 371 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to lower back extending to left lower limb – pain and suffering damages – loss of earning capacity damages – whether the plaintiff’s place of residence is a barrier to employment
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153; State of Victoria v Rattray [2006] VSCA 145; Richter v Driscoll [2016] VSCA 142; Harris v DJD Earth Moving Pty Ltd [2016] VSCA 188
Judgment: Application for serious injury certificate for pain and suffering damages is granted. The application for serious injury for loss of earning capacity is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr S J Carson | Maurice Blackburn |
| For the Defendant | Mr A J McG Moulds QC with Ms B A Myers | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff’s application is brought by Originating Motion dated 29 August 2016. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by him arising out of and in the course of his employment with the Charlton Feedlot on 24 May 2013 and 1 August 2013.
2 The application made by the plaintiff in this case relies on the physical injury to his lower back, including referred symptoms into his left leg.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages in respect of the physical injury to his lower back.
4 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined
·The plaintiff tendered the following documents:
§Exhibit P1 – the Plaintiff’s Court Book (“PCB”) pages 18-90;
·The defendant tendered the following documents:
§Exhibit D1 – the Defendant’s Court Book (“DCB”) page 1, pages 5-30 and pages 40-53
§Exhibit D2 – files of video surveillance of the plaintiff for 2 January 2017.
5 Mr Moulds, on behalf of the defendant, identified the following issues in this application:
(i)The pain and suffering consequences relied upon by the plaintiff do not satisfy the statutory test for pain and suffering certification. This case was a range case;
(i)Loss of earning capacity certification is in dispute. The plaintiff has a capacity to perform suitable alternative employment. The plaintiff’s residence in St Arnaud is not a barrier to him obtaining that employment;[1]
(iii)The plaintiff’s credibility.
[1]Transcript (“T”) 7-8
6 The defendant accepted that the injury occurred to the plaintiff’s lower back in the circumstances alleged by him.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
[3]Barwon Spinners (supra) at paragraph [3]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in 1958 and is fifty-eight years old. The plaintiff was raised and educated in Australia. The plaintiff is married to his second wife. He has three adult, independent children.[4]
[4]PCB 18
11 The plaintiff was educated to Year 10.[5] After the completion of his secondary education, the plaintiff then completed an apprentice mechanic course by the age of nineteen.[6]
[5]PCB 19 and T17
[6]PCB 19 and T12
12 The plaintiff worked as a mechanic until he was twenty-one. He then commenced employment at Peter Durkin Ford Car Sales and worked there for four years.[7] Subsequent to his car sales work, the plaintiff worked at Repco and Oriental Spares Transport Import.[8] The plaintiff then commenced a car yard known as Seaview Car Sales, which he conducted in partnership for a period of some eight years.[9] Subsequent to the operation of Seaview Car Sales, the plaintiff conducted and managed three separate car dealerships in his own capacity.[10]
[7]T13, L4-14
[8]T15, L2-8
[9]T15, L23 – T16, L8
[10]T16, L3-11
13 In 2000, the plaintiff moved to St Arnaud and purchased the Royal Hotel with his current wife. He operated the Royal Hotel for a period of three years.[11] After the sale of the Royal Hotel, the plaintiff lived in retirement for a short time[12] and then commenced employment with a business known as Purple Pig, which was a sales-related job.[13] In 2011, the plaintiff commenced employment at the Charlton Feedlot as a driver/handyman.[14]
[11]T19, L27-31
[12]T22, L29-30
[13]T23, L23-26
[14]PCB 19
14 The plaintiff purchased his current place of residence in 2009. In the period of 2009-2012, the plaintiff fenced, and had constructed sheds and a house on the premises.[15]
[15]T28, L11-12 and T28, L31 – T29, L10
Injury with Charlton Feedlot
15 The plaintiff commenced employment with Charlton Feedlot as a driver/handyman in February 2011.[16] The plaintiff, in his affidavit sworn 15 March 2016, set out the circumstances of the injury to his lower back at the Charlton Feedlot as follows:
“A lot of the time at the feedlot we were asked to do things that strictly speaking we were not employed to do and often we didn’t have the right tools. One such occasion was on 24th May, 2013, when I was helping out the boys to try and show them how to fix the springs on a truck. We didn’t really have the right tools. I was under the truck and trying to work on the springs when I developed pain in my back. Following that incident, I had a couple of weeks off work and saw a local GP. I then went back to work on light duties. I was back full-time and undertaking those duties when on 1st August, 2013, I had to use a little 2-step ladder to access the engine bay on a truck, so that I could get to the air filter and clean it out. The little steps really were not satisfactory, but it was all we had. As I was up on the steps they wobbled and I twisted to get my balance and in doing so suffered further injury to my back.”[17]
[16]PCB 19, affidavit of the plaintiff sworn 15 March 2016 at paragraph [3]
[17]PCB 19-20 at paragraph [5]
16 The defendant accepts that the plaintiff was injured in the manner in which he described and that it is a consistent history of the injury given by the plaintiff to the medical practitioners. The defendant does not accept that the plaintiff is currently unable to perform alternative employment.
Medical treatment
17 The plaintiff attended the general practitioner in Charlton, Dr Stephen Webb, after the first incident on 24 May 2013. He had a couple of weeks off work and then was returned to work at the Charlton Feedlot on light duties. After the second incident on 1 August 2013, the plaintiff re-attended Dr Webb at the Charlton Medical Centre.[18] The plaintiff was referred for an MRI scan of the lumbar spine, which was performed on 2 October 2013.[19] The MRI scan reported as follows:
[18]PCB 20
[19]PCB 35
“L4/5: Disk height is slightly reduced. There is high signal in the posterior annulus indicating an annular tear/fissure. There is a small posterior disk protrusion which flattens the ventral thecal sac and causes mild central canal narrowing without impinging on the descending L5 roots. Mild facet joint osteoarthritis causes mild bony narrowing of the L4 foramina but neither L4 root is impinged.
…
Conclusion:
Small L4-5 annular tear/fissure and posterior disk protrusion without neural impingement.
Widespread mild facet joint osteoarthritis without significant associated foraminal stenosis.”[20]
[20]PCB 35
18 Dr Webb then referred the plaintiff to Mr Huw Williams, orthopaedic surgeon.[21] Mr Huw Williams examined the plaintiff on one occasion, being 6 November 2013.[22] The plaintiff did not receive any further treatment from Mr Williams, but was advised to continue with conservative treatment.
[21]PCB 20
[22]PCB 26
19 The plaintiff continued to receive physiotherapy treatment until August 2014. The plaintiff had been referred to Dr Kesper, a rehabilitation physician, in 2014. Due to delay and some administrative errors, the plaintiff never, in fact, consulted with Dr Kesper.[23]
[23]PCB 20
20 The plaintiff’s current medical treatment is monthly visits to his general practitioner, Dr Webb. He is prescribed Voltaren, Panadol Osteo and Panadeine Forte. The plaintiff uses heat packs to assist with his lower back pain.[24]
[24]PCB 39
Medical opinions
The Plaintiff’s doctors
Dr Stephen Webb, general practitioner
21 Dr Webb prepared three reports dated 31 October 2014, 2 July 2015 and 20 September 2016 for the purposes of this application. Dr Webb noted that the plaintiff has persisting back pain. Dr Webb continues to prescribe medication in the form of Voltaren, Panadol Osteo and the occasional substitution of Panadeine Forte when the plaintiff’s back pain flares up. Dr Webb noted that the use of Panadeine Forte has caused significant constipation difficulties for the plaintiff.
22 Dr Webb’s opinion is as follows:
“… the prognosis remains extremely guarded and I would assume by this stage he has reached a stable state where by it is unlikely his ability to return to his previous position will be improved by any form of intervention and he is manifestly unable to undertake his pre injury duties as things currently stand.”[25]
[25]PCB 23
Mr Huw D W Williams, orthopaedic surgeon
23 Mr Williams prepared two reports dated 5 May 2015 and 7 May 2015 in respect of the plaintiff’s condition. Mr Williams stated that he had met the plaintiff on one occasion, 6 November 2013. Mr Williams had been provided with the MRI scan and noted:
“An MRI scan was provided which showed degenerative change in the lumbar spine with a moderately large posterior disc protrusion at the L4‑L5 level without evident nerve root compression.
The diagnosis of Mr Martin’s condition was one of lumbar disc prolapse that had caused some radicular pain but that had resolved. He had continuing problems of low back pain.”[26]
[26]PCB 26
24 Mr Williams went on to comment that he was somewhat surprised that the request for a report had been made suggesting that the plaintiff might have a total permanent disablement, as that would not be in keeping with his clinical impression of the plaintiff at the consultation in November 2013, because it did appear, at that time, that he was doing quite well. Mr Williams, therefore, expected the plaintiff would be able to return to his pre-injury employment, although with some restrictions.[27]
[27]PCB 26
Dr Sophie Lahz, rehabilitation physician
25 Dr Lahz was asked to advise and treat the plaintiff in respect of rehabilitation. She took an extensive history from the plaintiff and noted that his lower back was not tender and the plaintiff exhibited no guarding or spasm. She noted that there was no muscle wasting in respect to the plaintiff, and that there were no neurological abnormalities in his lower limbs. Dr Lahz’ opinion was:
“I agree with Dr Boffa (IME) that Mr Martin has non-specific mechanical low back pain without neurological abnormalities. Unfortunately, it is now 12 months since the original injury, and it is likely that the pain will persist, tending to fluctuate according to activity levels.”[28]
[28]PCB 33
Mr Paul D’Urso, neurosurgeon
26 Mr D’Urso saw the plaintiff for medico-legal reporting purposes. He prepared a report dated 13 October 2016. Mr D’Urso diagnosed the plaintiff as follows:
“Peter Martin is symptomatic from an L4-5 disk prolapse, causing subarticular nerve root compression, particularly on the left side. Lesser degenerative prolapse and findings are noted at the L3-4 and L2-3 level.”[29]
[29]PCB 71
27 Mr D’Urso’s opinion was that the plaintiff could undergo further MRI scans at the present time to determine what, if any, further medical intervention would be appropriate for the plaintiff. He thought the plaintiff would have a limited capacity for any type of full-time employment, but had potential for light part-time duties in the plaintiff’s current position.[30]
[30]PCB 72
Dr Robyn Horsley, rehabilitation specialist
28 Dr Horsley saw the plaintiff for medico-legal reporting purposes and prepared a report dated 26 September 2016. Dr Horsley noted the findings of the MRI scan performed on 2 October 2013. She diagnosed the plaintiff as follows:
“Mr. Martin sustained a significant injury to his lumbar spine on the 1st August 2013, on a background of pre-existing degenerative change in the lumbar spine. He has MRI evidence of ‘an L4/5 disc protrusion and an L4/5 annular fissure’. He presents today with ongoing mechanical back pain, referred left leg pain and no radicular features.”[31]
[31]PCB 89
29 Dr Horsley’s opinion was that the plaintiff would continue with the ongoing nature of the symptoms into the foreseeable future. Dr Horsley noted the plaintiff was not fit to return to heavy physical or manual labour.[32]
[32]PCB 89
The Defendant’s medical opinions
Dr Umberto Boffa, occupational physician
30 Dr Boffa examined the plaintiff on behalf of the defendant. He prepared three reports dated 28 April 2014, 2 March 2015 and 31 August 2015.
31 In his second report, Dr Boffa opined that the plaintiff was a fifty-six-year-old full-time farm maintenance and yard worker with chronic mechanical lower back pain consistent with canal stenosis without radiculopathy.[33]
[33]DCB 13
32 In his final report dated 31 August 2015, Dr Boffa maintained his opinion that the plaintiff suffered from a symptomatic lumbar spine canal stenosis without radiculopathy. In Dr Boffa’s opinion, conservative treatment of the plaintiff was the appropriate course to take. Dr Boffa noted the plaintiff was not working at that time, but had a work capacity.[34]
[34]DCB 18
Dr David Elder, occupational specialist
33 Dr Elder prepared a report dated 13 November 2015 in respect of the plaintiff’s condition. Dr Elder’s opinion was that the plaintiff suffered from mechanical lower back pain with no clinical evidence of radiculopathy.[35] Dr Elder noted that, in respect of the plaintiff’s activities of daily living, the plaintiff was able to drive both manual and automatic cars. He noted the plaintiff used a ride-on mower and had a tractor with a slasher. He noted the plaintiff could assist with the household chores and that there was really nothing that the plaintiff could not do. The plaintiff was independent and in self-care. He noted:
“… He did not describe sitting, standing, or walking restrictions in detail but stated again, ‘it is not like I used to’.”[36]
[35]DCB 22
[36]DCB 22
Mr Michael Shannon, orthopaedic surgeon
34 The plaintiff was examined by Mr Shannon for the purposes of medico-legal reporting. Mr Shannon prepared a report dated 6 December 2016. Mr Shannon noted that the plaintiff’s current treatment was taking Panadeine on an “as needs” basis, but this causes constipation. The plaintiff otherwise controlled his pain with Nurofen and Panadol.[37] Mr Shannon stated his opinion as follows:
“Mr Martin is suffering from mechanical back pain associated with degenerative disc disease in the lumbar spine.
It is likely that this underlying degenerative change was aggravated and accelerated by a couple of incidents as described resulting in a disc protrusion at L4-5 associated with an annular tear.
He had some symptoms suggestive of radiculopathy in the early stages, but these appear to have substantially subsided and he has no objective evidence of radiculopathy.”[38]
[37]DCB 42
[38]DCB 43
35 The overwhelming consensus of medical opinion is that the plaintiff suffers from mechanical lower back pain with no objective evidence of radiculopathy.
The credit of the Plaintiff
36 The plaintiff’s credit was challenged by the defendant. In the course of the hearing, the plaintiff was shown video surveillance film of him taken on 2 January 2017. The film included showing the plaintiff at his premises and, later in the day, at the St Arnaud Harness Racing Meeting, and the final part of the video showed the plaintiff in the main street of St Arnaud.
37 A fair summary of the video surveillance film would be that the plaintiff appeared to be able to move around, both walking and sitting, in a normal manner. He had attended the harness racing meeting with his wife and was socialising with other people at the trotting meeting.
38 I noted, at 3.22pm, when the plaintiff had been seated for approximately thirty-five minutes on a concrete step, the plaintiff standing up and walking further up the steps. To my observation, the plaintiff displayed a slight limp when he was moving up the stairway. At a later time in the video surveillance film, in particular at 3.56pm, the plaintiff was shown in the main street of St Arnaud with his wife. The plaintiff was shown getting into the driver’s door of his BMW vehicle. The action of the plaintiff getting into the motor vehicle appeared to be completely unrestricted and done in one fluid movement.
39 The video surveillance film of the plaintiff on 2 January 2017 did not discredit the plaintiff’s version of his symptoms, in the sense that he displayed far more mobility and flexibility in his physical movements on that day. It also did not show any great disability or inability to move around freely.
40 In the authority of Church v Echuca Regional Health,[39] the courts are warned about relying too heavily upon video surveillance when deciding on the credibility of the subject of that surveillance. I find that the surveillance of the plaintiff on 2 January 2017 does not advance either the plaintiff’s case or the defendant’s case in this proceeding.
[39](2008) 20 VR 566
41 I find that the plaintiff was given to exaggeration in the course of his evidence. The plaintiff, on a number of occasions in the course of his evidence, relied on the fact that his computer skills and knowledge were very limited as a reason why he was unable to re-enter the workforce. In the course of his evidence, the plaintiff stated as follows:
Q: “How is your use of computers, your computer knowledge?---
A: Very, very basic.
Q: Explain to the court, what can you do on a computer?---
A: Only at home, I can – I can turn it on and find Google and that sort of thing because it’s just a simple push of the button that my wife sort of set up the screen for me. I can look at things from HarnessWebb. I can’t send an email. I don’t – I just do what I’ve been shown to do.
Q: Did yourself and your wife run the Royal in St Arnaud?---
A: Yes.
Q: What was your role in that business venture? What was your role, your task?---
A: I was – I’d serve behind the bar and help out behind the bar, I’d basically keep the place maintained and neat and tidy, I would go and pick up whatever my wife had ordered for the week.
Q: Who did the bookwork and the money side of the operations?---
A: My wife handled all of that.”[40]
[40]T11, L6-21
42 This evidence is to be contrasted with the history given to, and the opinion of, Ms Katrine Green, the rehabilitation and recruiting expert. Ms Green stated in her report as follows:
“… [Mr Martin’s] computer skills included processing emails and using the internet he does not have keyboard skills. Mr Martin has worked in roles requiring decision making setting and monitoring budgets, organisational skills and closing sales on large priced items and demonstrating competent interpersonal skills.”[41]
[41]PCB 43
43 This evidence is an example of the plaintiff’s exaggeration of his difficulties.
44 The plaintiff was later cross-examined about his work in the car yard, in particular, relating to the paperwork for those car yards. He gave evidence as follows:
Q: “About how many dealerships would you have been in business by yourself?---
A: Probably three.
Q: In those three you were the licensed motorcar trader?---
A: Yes.
Q: For that you had to make application to the relevant organisation?---
A: Yes.
Q: You had to submit paperwork?---
A: Yes.
Q: And be of good character?---
A: Yes.
Q: You had to keep records of the cars that were bought and sold?---
A: Yes.
Q: That was a strict requirement, wasn’t it?---
A: Yes.
Q: They had to be accurate?---
A: Yes.
Q: You had ledgers to indicate that?---
A: Yes.
Q: You had sales agreements that you had to enter into on numerous occasions with various people?---
A: Yes.
Q: Those sales agreements were documents which carried full legal effect, didn’t they?---
A: Yes.
Q: So they were documents that you had to have a very close knowledge of?---
A: Yes.
Q: You had to, in fact the consumer legislation required you to advise the consumers in relation to some matters at least when they bought the vehicle didn’t they?---
A: Yes.
Q: You didn’t have any trouble handling all of that paperwork did you?---
A: My wife handled all the paperwork. I used to just sell the cars.”[42]
[42]T16, L9 – T17, L1
45 The plaintiff then was asked about the banking arrangements in respect of the business, and he stated as follows:
Q: “You were familiar with the banking arrangements and the general state of the accounts?---
A: Yes, but my wife handled all that side of it.”[43]
[43]T19, L24-26
46 The above evidence is in contrast to the history given by the plaintiff to Ms Green. Ms Green notes:
“For approximately twenty years, Mr Martin was the proprietor of several car yards with vehicles ranging in price from $3000 to $30,000. His role involved overseeing staff who with him were involved in buying and selling vehicles and preparing/detailing vehicles for sale. Mr Martin was also responsible for payroll, making business decisions and monitoring the financial and general aspects of the business, overseeing the presentation of the showroom and yard and addressing dealership issues and the like and selling cars.”[44]
[44]PCB 42
47 I accept the plaintiff has reasonably accurately described his symptoms and that history is supported by his general practitioner and other medical examiners. In respect to his ongoing capacity to perform work, however, the plaintiff has exaggerated his difficulties, in particular, relating to his managerial, bookkeeping and computer skills.
Pain and suffering consequences
48 The plaintiff has sworn and affidavit dated 15 March 2016 in support of his application. In that affidavit, he sets out his pain and suffering consequences as a result of the injuries he received at his employment at Charlton Feedlot. I note that the plaintiff ceased receiving weekly payments on 20 February 2016. In the affidavits and his histories to doctors, the plaintiff has complained of the following consequences.
Sleep
49 The plaintiff has not mentioned an impact on his sleeping patterns in his affidavit. However, in his history to Ms Mary Oliver, employment assessment consultant of Flexi Personnel, the plaintiff stated:
“… [Mr Martin] said he goes to bed at 10pm and his sleep is disturbed every time he rolls over and therefore he is fatigued during the day and for that reason he naps for approximately 1 hour each day.”[45]
[45]PCB 61
50 The plaintiff also complained to Dr Boffa that his sleep is disturbed.[46] I accept that the plaintiff has suffered a consequence of some disruption to his sleep patterns, but do not accept that, in this case, it is a very considerable consequence for him.
[46]DCB 12
Pain
51 The plaintiff, in his affidavit, sets out that he has constant lower back pain. He stated that the pain level fluctuates in a rating between 3 out of 10 and 9 out of 10 on a bad day. The plaintiff stated that he continued to have pain into his left leg, but said it came and went.[47]
[47]PCB 21 at paragraph 13
52 The plaintiff, in his evidence, stated as follows:
Q: “Now, do you still suffer from back pain?---
A: Yes.
Q: Where is that pain?---
A: Lower back pain.
Q: Do you have back pain – sorry, do you have pain anywhere else?---
A: Shooting pain down my left leg and buttocks.
Q: Are you ever free of the back pain?---
A: No.
Q: Does it remain the same or does it vary?---
A: It varies.
Q: What is it like at its worst?---
A: On a scale, nine out of ten, ten out of ten, and excruciating.”[48]
[48]T9, L23-L30
53 The plaintiff stated that when the pain flares up, that he takes Panadeine Forte to treat the pain. He noted that he limits the amount of Panadeine Forte he takes because of the side effects of constipation. This evidence is supported by the reporting of his general practitioner, Dr Webb.
54 I accept that the endurance of the permanent daily pain which requires medication would, according to ordinary experience, be a very considerable consequence for the plaintiff.
Medication
55 The plaintiff’s evidence is that he takes Panadeine Forte to ameliorate his pain levels when they flare up. His general practitioner, Dr Webb, prescribed the plaintiff Voltaren and Panadol Osteo, with the occasional substitution of Panadeine Forte for the flare-ups of his back pain.[49] The plaintiff, in his evidence, stated that he took Panadeine Forte a couple of times a week when the pain was bad.[50] The plaintiff stated that if he takes any more Panadeine Forte than that, then constipation becomes a problem for him.[51]
[49]PCB 23
[50]T10, 20-21
[51]T10, L22-24
56 I accept the plaintiff is required to take medication as he has stated, which is supported by the prescriptions by Dr Webb. I accept the need for the plaintiff to take regular pain-relief medication to ameliorate his pain is a very considerable consequence for him.
Sport and horses
57 The plaintiff gave a history to Ms Green that he no longer participated in the recreational interests of golf, horse-riding and water skiing as a result of his lower back injury.[52] The plaintiff gave evidence that he was always interested in, and involved in, harness racing. He described his interest in harness racing as a hobby.[53] In 2010, the plaintiff obtained a trainer’s licence for harness racing.[54] In 2015, the plaintiff purchased a new sulky, which had suspension seats and everything on it, but he has been unable to continue in training his horses by driving them with the sulky.[55]
[52]PCB 44
[53]T14, L18-19
[54]T15, L16
[55]T54, L13-17
58 I accept that the plaintiff is restricted in the manner in which he can involve himself in training and/or dealing with, and enjoying, his harness racing horses and that this is a very considerable consequence for him. I accept that he can attend at trotting meetings and travel to them for some considerable distance. Nevertheless, the full, active and direct engagement with the horses is denied to him because of his lower back injury, and I find that is a very considerable consequence.
Conclusion
59 I find the consequences referred to above, which the plaintiff is suffering as a result of the injury to his lower back, are at least very considerable and certainly more than significant or marked. The plaintiff satisfies the statutory test for serious injury certification in respect of pain and suffering consequences. I accept that the plaintiff will suffer these consequences for the foreseeable future.
Loss of earning capacity
60 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a)at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
61 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
62 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
63 The parties in this case made submissions in respect of the authorities of the State of Victoria v Rattray,[56] Richter v Driscoll[57] and Harris v DJD Earth Moving Pty Ltd.[58] These authorities relate to the matters to take into account in respect of no current work capacity and suitable employment. In the case of Richter, it was held by the Court of Appeal that the question of whether a worker is able to return to work in suitable employment specifically requires a consideration of matters travelling beyond the physical capacity to perform a task.[59]
[56][2006] VSCA 145
[57][2016] VSCA 142
[58][2016] VSCA 188
[59]See Richter v Driscoll (supra) at paragraph [77]
64 It was held by the Court of Appeal in Richter, that the issue of current work capacity and suitable employment requires a consideration of the worker’s ability to work, having regard to the entirety of the worker’s personal circumstances. This includes that the injury caused incapacity and the other circumstances personal to the worker, which bear upon his or her ability not simply to perform the physical tasks required by that particular employment, but also to work in that employment as a settled member of the workforce.[60] Richter’s case was a decision relating to a Medical Panel decision.
[60]Richter v Driscoll (supra) at paragraph [95]
65 In the case of Harris, the issue of suitable employment arose from a serious injury application. In Harris’s case, the Court of Appeal held that the test is one of physical capacity of the employee, not the employability in serious injury applications.[61] The issue for me to determine is whether or not the plaintiff had the physical capacity to perform suitable employment, not whether the employment was available. The onus is upon the plaintiff to prove that such a job does not exist.[62]
[61]Harris v DJD Earth Moving Pty Ltd (supra) at paragraph [49]
[62]State of Victoria v Rattray (supra) at paragraphs [16]-[20]
66 In this case, the parties agreed that the “without injury” earnings was a gross figure of $866 per week.[63] The plaintiff, therefore, had the onus of proving that he was unable to earn more than $519 gross per week before being eligible for a serious injury certificate for loss of earning capacity. The figure of $519 gross per week was agreed between the parties.[64]
[63]T81, L13
[64]T81, L11-13
Medical opinions
Mr Paul D’Urso, neurosurgeon
67 Mr D’Urso’s opinion was that the plaintiff’s incapacity was permanent of a partial nature. He stated:
“It would appear that … [the plaintiff] has the capacity for part time light employment at this time. I would however place permanent restriction on … [the plaintiff’s] capacity to perform manual employment activity that requires repetitive bending, twisting or lifting activity, lifting from below the knee and above the shoulder. … [The plaintiff] should not be required to lift by an excess of 15 kilograms. He should avoid awkward postures of the lumbar spine.”[65]
[65]PCB 71
Dr Robyn Horsley, occupational physician
68 Dr Horsley’s opinion in relation to the plaintiff’s capacity for suitable employment was set out as follows:
“Mr. Martin is now 58 years of age. He has been out of the workforce for two years. Realistically, he has come to the end of his working life. I do not believe that he is a realistic retraining or redeployment candidate. This takes into account his Year 10 education, his poor computer skills, his physically based qualifications and work experience, his two years out of the workforce and his geographic location in St Arnaud, 130km north of Bendigo.”[66]
[66]PCB 90
69 Dr Horsley has referred to some of the plaintiff’s previous work experience and qualifications in that opinion. The plaintiff, over the course of the majority of his working life, has been a self-employed, self-motivated person. His work has not always involved heavy physical work. I do not accept that Dr Horsley has taken into account all of the issues relating to a proper assessment of the plaintiff’s ability to be re-employed in the workforce.
Ms Katrine Green, occupational therapist
70 Ms Green’s opinion is set out in her report. She stated that:
“In considering Mr Martin’s education, trade qualifications, work history, transferable skills and occupational knowledge the main occupations for which he could be considered are: General Farm Hand, Stable Hand, Handyperson, General Labourer, Truck Driver, Motor Mechanic, Motor Vehicle Salesperson, Motor Vehicle Customer Service Desk Clerk, Motor Vehicle Spare Parts Interpreter, Earth Moving Plant Operator, Forklift Driver, Bar Attendant and Sales Representative.… .”[67]
(emphasis in original).
[67]PCB 50
71 Ms Green then went on to consider each and every one of the above-mentioned occupations, and stated that the plaintiff was unsuitable for that work. I find that the plaintiff is able to perform lighter duties that do not involve heavier work. The jobs of motor vehicle sales person, motor vehicle customer service desk clerk, motor vehicle spare parts interpreter and sales representative, are all forms of employment the plaintiff could undertake. I do not accept the plaintiff’s evidence that he is so incapable of operating or working within a computer-related environment at the workplace.
Ms Mary Oliver, employment assessment consultant
72 Ms Oliver gave her opinion as follows:
“… From a recruitment perspective, … [the plaintiff’s] employment prospects in St Arnaud would be hindered by his place of residence due to the generally limited job openings in rural towns if compared with metropolitan areas.”[68]
[68]PCB 65
73 The plaintiff lives within a commuting time of an hour-and-a-quarter to an-hour-and-a-half to a number of major regional cities. These include Horsham, Ballarat, Bendigo, Maryborough and Stawell. Ms Oliver relies upon the distance and opportunities that people who live in rural towns have for employment to inform her opinion. People in metropolitan areas commute for times in the range of an hour to an-hour-and-a-half to their place of work. I do not accept that the plaintiff is unable to travel to Bendigo, Horsham or Stawell to obtain employment.
74 Ms Oliver goes on to say that the plaintiff’s maturing age and place of residence are both potential inhibitors to him finding suitable alternative employment post-injury. I find that the potential inhibitors referred to of age and place of residence will not form a barrier to the plaintiff obtaining suitable alternative employment.
Mr Michael Shannon, orthopaedic surgeon
75 Mr Shannon’s opinion in relation to the plaintiff’s employability was expressed as follows:
“… I think he is by no means totally incapacitated, but it would appear, reading between the lines, that he is not at all keen to seek employment elsewhere and he may well have difficulty in finding employment in a country town.”[69]
[69]DCB 43
76 Mr Shannon then went on to assess that the plaintiff was able to perform the roles of sales representative, business relationship manager and parts interpreter.[70]
[70]DCB 45
Dr Umberto Boffa, occupational physician
77 Dr Boffa’s opinion on the plaintiff’s employability was expressed as follows:
“4. The worker has a current work capacity.
5. The worker is fit for a graduated return to duties that allow change of posture and avoid repetitive Bending, twisting, pushing, pulling, lifting and carrying more than 10 kg.
6. The employment options listed in the vocational assessment report provided are suitable from a physical point of view but are not locally available to him.”[71]
[71]DCB 18
78 In his evidence, the plaintiff agreed that he could perform work as a sales representative promoting and selling companies’ goods and services, such as building or plumbing supplies. He stated that he could probably try such work.[72]
[72]T45-47
79 The plaintiff agreed that when he was working for the Purple Pig in the time prior to employment with Charlton Feedlot, that he was able to perform all of these tasks, and that he could still do so.[73]
[73]T47
80 The plaintiff agreed that since his injury, he had not applied for jobs in his local area. These jobs include sales jobs at farm-supplier premises.[74]
[74]T48, L20-30
81 The plaintiff gave evidence that while he was still working at Charlton Feedlot, he tried to change his employment from working at the Charlton Feedlot to working for the same employer, but at the farm supply premises in St Arnaud.
82 I find, based on all the evidence, including the plaintiff’s evidence and the medical opinions, that the plaintiff has the capacity to engage in the suitable employment of a sales representative and a parts interpreter. The sales representative employment on a full-time basis would result in a gross weekly income of $1,175 per week.[75] The gross income of a parts interpreter job would result in $1,000 gross per week.[76] Both of these forms of employment exceed 60 per cent of the plaintiff’s “without injury” earning capacity.
[75]DCB 50
[76]DCB 52
83 The plaintiff has, over his work history, shown that he is a motivated and capable self-starter in relation to employment. In the course of his life, the plaintiff has held the roles that have required decision-making, negotiating skills, organisational skills, interpersonal skills and the ability to close sales on highly priced items. He is well equipped to perform the tasks of a sales representative or a parts interpreter. The plaintiff has run and managed a number of car yards over an extended period of time. He has also owned and managed a hotel in the local town where he lives for a period of three years. The plaintiff has a wide range of skills that equip him for sales-related employment.
Conclusion
84 I find that the plaintiff has not satisfied the statutory test for loss of earning capacity now and into the future. The application for serious injury certification in respect of loss of earning capacity is dismissed.
85 I will hear the parties on costs.
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