Mastroianni v C a Sinclair Pty Ltd and VWA
[2011] VCC 488
•8 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00586
| MARIO MASTROIANNI | Plaintiff |
| V | |
| C A SINCLAIR PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 and 4 March 2011 |
| DATE OF JUDGMENT: | 8 April 2011 |
| CASE MAY BE CITED AS: | Mastroianni v C A Sinclair Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 488 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Smith SC with | Arnold Thomas & Becker |
| Mr M Carey | ||
| For the Defendants | Mr J Batten with | Lander & Rogers |
| Mr S O'Sullivan | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant from October 2003 to 4 April 2007 in particular on 10 May and 2 October 2006 and 4 April 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. Dr Portelli, the plaintiff’s general practitioner, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged forty five, having been born in Italy on 18 October 1965. He came to Australia with his family in 1971.
7 The plaintiff left school at about the age of sixteen and did a motor mechanic’s apprenticeship but only completed three years of the four year course.
8 In cross-examination the plaintiff confirmed that after his apprenticeship he then worked as a mechanic at Ford and also at a number of petrol stations.
9 The plaintiff married in 1987 and his son, Jason, was born in August that year. In 1986 the plaintiff’s younger brother was murdered. Thereafter the plaintiff “started to go off the rails”, using marijuana, amphetamines and then heroin, which took its toll on his marriage and he separated from his wife.
10 After 1990, the plaintiff was out of work for five or six years on unemployment benefits when his drug problem took over and he committed a range of criminal offences and was gaoled.
11 In the years after 1996, the plaintiff tried to go off heroin by undertaking a Methadone program. He attempted to obtain steady employment and got on with work as a motor mechanic. In more recent years the plaintiff has achieved better control over his drug abuse, particularly heroin.
Pre-existing Back Condition
12 The plaintiff suffered from back pain prior to commencing work with the first defendant in October 2003.
13 In September 1998, the plaintiff worked for Wolfsburg Automotive as a mechanic, servicing and repairing Volkswagen vehicles. On about 19 October 1988 he suffered a low back injury at work whilst attempting to manoeuvre a car motor. He saw Dr Arduca in Hughes Parade who gave him a certificate. The plaintiff submitted a WorkCover claim and was sent by the insurer to a specialist about a month after the injury. By that time, the plaintiff had recovered and was working full time without pain, having had about two weeks off work.
14 The plaintiff suffered injury in a car accident on 22 November 1994 when he was run over as a pedestrian (“the 1994 car accident”), suffering a very bad fracture of his left ankle as well as a closed head injury.
15 The plaintiff was taken to the Preston and Northcote Community Hospital (“PANCH”), where surgery was performed on his left ankle. He was then on crutches for some time. The pain “got to him” and he became very depressed.
16 The plaintiff was between jobs at the time of the 1994 car accident. He had been a labourer in a tile factory doing work on machinery before this accident. The plaintiff was due to start work at the Crown Casino as a maintenance worker a short while after the 1994 accident, but this never occurred.
17 By February 1995, the plaintiff was using a walking stick. He was “in a mess psychiatrically with his pain”. He was taking large amounts of tranquillisers and painkillers, as well as increasing his alcohol intake and using heroin.
18 The plaintiff overdosed on tablets and was sent to see Professor Paoletti, psychiatrist, who admitted him to the Melbourne Clinic for two weeks or so. The plaintiff returned to the Melbourne Clinic in December that year for another week long stay, at which time he was still limping, had chronic left ankle pain and stiffness as well as low back pain.
19 The plaintiff returned to work as a marble cutter but then got retrenched.
20 The plaintiff deposed that he also had a relapse of heroin use and had a further car accident while affected and hit two parked cars. He did not suffer a major injury and he soon pulled himself together again and got off drugs.
21 The plaintiff had another motor vehicle accident on 10 November 1998 when he walked into the path of an oncoming car (“the 1998 car accident”) and suffered a fracture of his right lower leg. He also injured his head, knees and right shoulder, as well as his back and elbow.
22 At the time of the 1998 car accident, the plaintiff was employed as a labourer with Tasman Engineering.
23 The plaintiff was an inpatient at St Vincent’s Hospital (“St Vincent’s”) for a short time, where he had an operation on the right leg fracture and a second operation on his left knee. He then spent three or four months rehabilitating at Bethesda.
24 The plaintiff remained off work for a long time and developed more problems with pain and medication and further problems with heroin. In about April 1999, he commenced the Methadone program with reducing doses throughout that year.
25 Whilst he was on the Methadone program, the plaintiff continued to see Professor Paoletti for his anxiety and depression. The plaintiff did not like Methadone and used heroin from time to time. However, he managed to mostly keep to the program.
26 The plaintiff developed back pain after the 1998 car accident. In 1999 he had an MRI scan of his back and he was told by one doctor to change his bed. He found that helped reduce his back pain.
27 The plaintiff received a settlement of about $30,000 in relation to the 1998 accident.
28 Between December 1999 and February 2000, the plaintiff attended Olympia Private Rehabilitation Centre because of continuing left knee and right leg pain as well as psychiatric difficulties. In mid December 2002 he was taken to the Northern Hospital after taking lots of pills and drinking. The plaintiff wanted to kill himself but he got scared and called for help and was seen by a psychiatrist at the Hospital.
29 In the late 1990s, the plaintiff was under the care of Dr Lim, a pain management specialist, and he attended Dr Widjaja at the Epworth Hospital (“Epworth”). In cross-examination, the plaintiff agreed that he was telling doctors at Epworth in October 1999 he was having significant back pain, particularly because of his bed at that time.
30 The plaintiff agreed that he could have told medico legal examiner Mr Flanc in 2001 that he had low back pain with an occasional spasm of severe pain and that at other times he had to be very careful when he moved. The plaintiff may have told Mr Flaim in 2002 of episodes of low back pain lasting one to one and a half weeks. Further he could have complained to Dr Pathak, whom he saw in 1999 in relation to his drug problem, of constant low back pain, pain in the buttocks and down the outside of his thigh to his knee.
31 When the plaintiff saw Mr Schofield in 2008, his back was feeling a bit sore. He could not recall denying a history of previous back illness, but then said he would not have told Mr Schofield that because he had had back problems.
32 Between 1998 and 2003, the plaintiff did not do any work because of the after effects of the 1998 car accident and further left knee surgery in 2004 and also surgery to his foot.
33 Throughout 2001 and 2002, the plaintiff had continuing pain and psychological problems and then he really started to feel an improvement.
34 In 2003, the plaintiff was in a position to get back to work and he got a job with the first defendant, the operator of a meat works, of which his brother, Angelo, was the manager. The plaintiff also knew the company owner, Colin Sinclair.
35 Although he had not worked in a meatworks before, the plaintiff knew about butchering and cuts of meat because his brother had had a butcher’s shop in the past and from time to time the plaintiff worked with him. In the 1980s, whilst he was working as a motor mechanic, the plaintiff helped his brother in his Northcote Plaza shop. The plaintiff also has two other brothers who are butchers.
36 The job with the first defendant was fairly physical. The meat works only dealt in pork, the carcases which were either half or full. They were cut and packed for the domestic market in boxes and then stored in cold rooms until they were loaded into trucks for delivery. Each box had to weigh the industry standard of 27.2 kilograms.
37 The plaintiff’s working day commenced at 5.00 am when he had to unload full and half carcasses from the trucks. The weight of carcasses varied, the heaviest being 90 kilograms, with the average weight being 40 to 50 kilograms. A half sow weighed between 80 to 85 kilograms. The 27.2 kilogram boxes were about a foot high and three feet long. The plaintiff had to stack those boxes on a pallet on the floor seven high with six boxes in each row. The plaintiff did approximately three pallets a day.
38 The plaintiff was also required to lift the carcasses from one rail inside the truck and hook it to the sliding rail which extended from the rear of the truck into the factory. He had to grab the carcass, lift and twist, and then move a couple of steps, about three metres, and then hook it on the sliding rail, and then push it out to the factory.
39 The plaintiff spent about two hours a day unloading two trucks, which carried about 160 halves. He worked alone as he was the tallest worker and he could reach the rails. He took a tea break of fifteen minutes and for the remainder of the day he was engaged in slicing and packing pork. He trimmed the portions at a bench. If the box was overweight, he had to remove the portion and trim it to the correct weight.
40 The plaintiff then had to pick up the box of pork and take it to the strapping machine, which was a couple of paces away. After strapping, he picked up the box again, put it on a pallet on the floor, about four or five paces away, and then bent low to start loading the empty pallet with boxes.
41 The plaintiff was paid $506 gross per week and $12.65 per hour.
42 The work was all heavy and rarely varied over the years 2003 to 2006. Over that time, the plaintiff had occasional back pain and sometimes took a couple of days off here and there. Mostly he took Panadol from first aid to manage the pain and was able to keep working.
43 The plaintiff was pretty fit whilst working for the first defendant and he “certainly felt a whole lot better” than he did in the period after the 1998 car accident.
44 From 2002 to 2005, the plaintiff did not see Professor Paoletti as he was coping with his medication. The plaintiff then returned to see him because he was keen to get off the heroin replacement treatment and thought he could go straight off drugs.
45 In cross-examination the plaintiff said that he resumed seeing Professor Paoletti in 2005, because he must have “back slid” and needed him.
46 After 2005, the plaintiff continued to see Professor Paoletti and also saw Dr Portelli from time to time. The plaintiff also saw Dr Bowes for help with his heroin addiction and was prescribed Suboxone rather than Methadone.
47 The plaintiff was cross examined about a certificate given to him by a Dr Mohan from 24 to 26 April 2006. It appeared from the clinical notes that the plaintiff had seen him for a chest problem, not for his back.
48 On 9 May 2006, the plaintiff took an overdose of Valium (“the overdose”). That day, he tried to contact Professor Paoletti and later that night spoke to him on the phone, by which time the plaintiff felt better and he agreed to see Professor Paoletti the next day.
49 The overdose was brought on by back pain and taking too much medication. The plaintiff was getting Valium and other medication the name of which he could not remember. His job was heavy and now and again he got back pain from lifting and he had to go to the doctor but he still went back to work. He used to take tablets and he “probably took a little too many that night.”
50 The plaintiff agreed he got medication for his back before 2006 and that he had been prescribed Tramal in relation to his car accident injuries.
51 When further cross-examined the plaintiff said he overdosed - “just for me back, for my pain”. He thought he was taking Valium at that time as a painkiller, prescribed by various doctors. He then said he overdosed “because of pain and not feeling well, feeling depressed - it could have been many things”.
52 On 15 April 2006, whilst still working full time with the first defendant, the plaintiff started a small mobile mechanical repair business called I-Tech Mobile Mechanics.
53 The plaintiff deposed he was earning about $2,700 per month for mechanical repairs. He earned this amount for a short while until injuring his back on 10 May 2006. The plaintiff had a lot of debt to pay off for the van and setting up the business and he kept the business going until March 2007 when he could continue no longer because of his back condition. The business ceased to operate on 30 June 2007.
54 In cross-examination, the plaintiff explained that the work in that business was minor repairs and not major work such as removing an engine. He agreed he stopped that business when he was unable to continue lease payments for the van. The plaintiff lost his business as he was injured and he could not work.
55 The plaintiff deposed in February 2011 that prior to injury in 2006 he had the prospect of going into business for himself and had purchased a van from his savings to build up the business. After the injury he lost a lot of business because he could not do all the repairs, as he could not get under a dash board physically to work on an electrical system, or simply replace a fuse.
56 In re-examination, the plaintiff explained that much of his mechanic work came from businesses located near the first defendant’s premises. He worked daylight hours after he finished his duties with the first defendant.
57 The plaintiff has always loved things mechanical. It was a passion and he misses it. Now he is unable to do this work “because you have to be able to weave in and out, you have got to be a worm to go under the electrics to get under cars” and he would not attempt it.
58 The plaintiff then said that perhaps six or seven months after he finished work with the first defendant the van was repossessed. The plaintiff could not keep up payments because he was too ill and he was hoping during that period his back might come good with a bit of rest.
59 In cross-examination, the plaintiff agreed that he told Professor Paoletti on 2 November 2005 he had fractured his ribs at work. At that time, he got a little bit of back pain as well and had about four days off work.
60 In cross-examination, the plaintiff said he had occasional time off work before May 2006 when he put his back out. “There were many times that we lifted something up and I didn’t feel well. If it was a shoulder, a leg, a back, we had time off.”
61 The plaintiff agreed he had significant episodes of prolonged back pain in the 1990s. He agreed that his lower back pain did not stop after settlement of his 1998 car accident claim. He was having very minor low back pain because he was still able to work with the first defendant for two years. He then said it is not correct that he had episodes of back pain which required time off before May 2006.
62 The plaintiff later said he was fine from the time he started work with the first defendant until May 2006, as he was able to work five days a week and worked in the factory on Saturday.
63 The plaintiff then said within that time, he had a few problems with his back and took a couple of days off work and always returned back to work. He could recall Dr Atkin giving him seven days off work in September 2005, when he suffered a strain to his low back lifting. He agreed there had been a few occasions where he did go to the doctor because he was not feeling well and then he had a few days off.
64 In re examination the plaintiff said that when he started work with the first defendant he felt good. He had a few hiccups but he picked himself up and he was strong and healthy and had to be in order to be able to do that job.
65 Before May 2006 the plaintiff never declined to do a particular job with the first defendant and was doing the lot, even the heaviest work because of his height.
66 In his third affidavit, the plaintiff deposed that on 10 May 2006 (“the first date”), he injured himself, slipping and falling on a wet floor at the first defendant’s premises at Campbellfield, landing on his buttocks. (“the first injury”). His back was extremely painful at the time. He was wearing runners when he slipped as he had just changed to go home.
67 The water on the floor was from a pipe which had been leaking constantly for days and had not been fixed despite the plaintiff’s requests.
68 Having initially deposed the first injury occurred on 2 October, the plaintiff saw an entry in the register of injuries dated 10 May 2006, on which he recognised the office worker, Paul Collinson’s, hand writing, setting out this incident in fact occurred in May.
69 The first defendant’s premises at Campbellfield was a new factory. Its office was in Thomastown. There was no register of injuries at Campbellfield so the plaintiff had to go to Thomastown to make the report on 10 May 2006, which he thought he did the next day or the day after because he knew at the time it was a bad injury. The plaintiff thought that there were plenty more reports of injury made by him in the register.
70 Following the first incident, the plaintiff was in a lot pain. He was pretty stunned and tried to get up but fell again. Angelo came over to help him and after about five minutes, the plaintiff was able to get up and walk to his car, and went home. He did not work the remainder of the day because his back was too painful. The plaintiff had an injection from a doctor the next day, or the day after, and then had some time off work.
71 The plaintiff told Professor Paoletti he slipped on a wet floor on 10 May 2006 when he was getting changed. The plaintiff explained that the boning room and the front door are all in the one area. He was angry and frustrated that he had fallen on a water leak that he had complained about. He was put off work for four days by Dr Rigoni and then continued full time work with medication and also continued his mobile mechanic work.
72 Despite the plaintiff’s requests for lighter duties, Angelo told him there were no light duties, so the plaintiff kept working as usual. The plaintiff’s lower back remained very sore and he reported this to Angelo from time to time, but he was told “that was just his job.”
73 The plaintiff went to see Dr Portelli or another doctor at his clinic on a few occasions. He took Panadeine, some Voltaren and Valium for back spasm. When the pain came on, it was sharp and strong and he just froze up. He could not move. Medication got him a little bit mobile, but it still took about two or three days before the plaintiff would get moving normally again, and he took a couple of days off work here and there.
74 In February 2011 the plaintiff deposed that his back pain is constant and remains all day long when a spasm comes on. If there is no spasm, he can be free of pain most of the day. He gets leg pain when the back spasms occur. His pain varies in intensity, depending on the activity in which he is engaged.
75 In cross-examination the plaintiff described a spasm as being like a leg cramp, but in the middle of his back and he cannot shake it off. He gets sharp pain which goes right through the back of his left leg.
76 The plaintiff initially said he had not experienced pain like that before the first incident, when he experienced slight pain feeling not very comfortable, but after the first incident it became worse. This is the sort of pain he also experienced in April 2007.
77 Asked again about spasms, the plaintiff said he had them in the past, but not as severe as he has had them after the first incident.
78 The plaintiff deposed that the low back pain he suffered from following the first incident was much worse than any pain he had suffered prior to that time. When the pain comes on, he cannot move at all and he has to be very careful how he moves or what he does. Before the first incident, he was able to move around with the pain, but thereafter “the pain would just stop him in his tracks.”
79 The plaintiff deposed that in October 2006 (“the second date”), he developed a very serious spasm when he lifted a box of meat weighing over twenty seven kilograms and he then had to stop work again.
80 In cross-examination the plaintiff said he went to the doctor on 2 October 2006 because he was not feeling well. He could not remember another episode of back pain. When his affidavit evidence was put to him, he said he could have had a spasm.
81 The plaintiff then attended Dr Rigoni the following day at the Lalor Clinic and further investigations were arranged.
82 The plaintiff resumed work after the second incident but continued to use Voltaren, Valium and Panadeine medication for his symptoms.
83 The plaintiff worked on with his symptoms until 4 April 2007 (“the third date”). He was then at work packing and he had to lift a large heavy box, when his back went into spasm again, the worst spasm he had experienced (“the third incident”). The plaintiff turned around to someone nearby and said, “I’ve done it this time”, and just dropped the box he had lifted.
84 The plaintiff had two weeks off after the third incident. It was a couple of days before he could see Dr Portelli. When the plaintiff came back to work to hand in his medical certificate at the Thomastown office, he was told he was no longer employed. He was shocked. He thought the first defendant took the certificate but told him it had nothing to do with them. The plaintiff was never told he was sacked or made redundant before the day he handed in his certificate.
85 The plaintiff did not agree that he finished work with the first defendant on 30 March 2007. He was still being paid by the first defendant at that time. The plaintiff and other workers had not been told they were being made redundant.
86 Some time after the plaintiff had handed in the certificate dated 10 April, he had a discussion with Angelo about working for him. The plaintiff told him he could not do so because of his injury. He denied he told Angelo that he did not want to work because he wanted to take the compensation route.
87 After he was retrenched, the plaintiff continued to have treatment, including physiotherapy.
88 The plaintiff agreed that he had various relapses into heroin use and that he had had two admissions to Melbourne Clinic in April 2007.
89 The plaintiff did a security work course organised by CRS towards the end of 2007 over a couple of months. He then worked for TBD United Security and Sentry Security Services and was paid twenty seven dollars per hour. He did a walking security round at DFO stores, but working on his feet all day, he developed increased back and leg pain. He had difficulty standing after thirty five minutes.
90 In cross-examination, the plaintiff agreed he had made an urgent appointment with Professor Paoletti on 16 April 2008 having taken heroin about seven times in the preceding fortnight. He explained that he had finished security work in early 2008.
91 In about April 2008, the plaintiff started a job with Alone Nominees trading as A Porchetta. That business which dealt in ham goods, was run by Angelo. The plaintiff worked limited hours until November 2008 earning about $300 per week. Thereafter he increased his hours to about thirty five per week for which he was paid $640 gross. The plaintiff deposed he worked on increased hours with great difficulty and could just work with increasing pain.
92 In re-examination, the plaintiff said labourers at A Porchetta worked a thirty five hour week starting work at 6 am and finishing at 1 pm.
93 Working at A Porchetta, the plaintiff had to lift weights and boxes of smallgoods only weighing between five and eight kilograms and he was not required to handle heavy carcasses. His job also involved forklift driving and customer service. The plaintiff agreed the work was physical and involved lifting and bending.
94 The plaintiff used his own van for pick-ups and deliveries for about forty minutes a day, claiming a deduction in his tax return for the expenses of diving 95 to 100 kilometres per week for work.
95 The plaintiff does the same duties in his present position with deliveries, packing work, checking the temperatures in the fridges and paperwork.
The Video
96 The defendants admitted that there was seventy eight hours of surveillance over twenty two days with sixteen minutes of video taken on 18 and 20 November 2008 shown.
97 The plaintiff was shown lifting three boxes from the rear of a van to a shopping trolley. He explained he was able to lift the boxes of smallgoods as they weighed only fifteen kilograms. “I get my good days and my bad days.”
98 The plaintiff was also shown carrying bags of meat weighing twelve to fifteen kilograms. In cross examination, he agreed he was shown lifting boxes of goods and bags of meat in an unrestricted manner and without obvious difficulty, getting in and out of a van and also driving a small forklift.
99 The plaintiff agreed he was shown moving freely, not having any difficulty with bending or lifting and that he was able to get in and out of the vehicle without any difficulty.
100 In re-examination, the plaintiff said he had a rest and placed a box on the trolley before moving it further because he had to be careful how he lifted things and how he manoeuvred them, that is why he paused. He was better off holding bags of meat in both hands because it kept him balanced.
101 The plaintiff claimed he was then doing light restricted duties, having increased his hours under Dr Portelli’s care. This increase occurred with great difficulty and the plaintiff could just cope with the increased pain.
102 Whilst working at A Porchetta, the plaintiff continued to experience leg pain stiffness and soreness and from time to time he developed spasms. These spasms were not as bad as those he experienced in the period from 2006 to 2007. The plaintiff knew he had to move carefully.
103 The plaintiff had a minor car accident in September 2008. He must have been pretty tired and he nodded off briefly and hit a parked car. That accident upset him emotionally for a short time but it was all under control soon after and he did not have any additional physical injuries or back pain.
104 The plaintiff could not recall any changes in his lower back as a consequence of this car accident and he made no claim on the TAC.
105 In February 2009, the plaintiff ceased work at A Porchetta after a disagreement with Angelo because of the amount of work the plaintiff was doing and the symptoms he was experiencing.
106 From March until November 2009, the plaintiff worked for Vince’s Meat Supply, which had a boning room out the back and a butcher’s shop in the front, where the plaintiff worked. It was lighter work for which the plaintiff was paid $584 gross per week. He could not work more hours because of the increasing symptoms of pain and stiffness in his back.
107 The plaintiff left this job because Vince wanted him to do a bit more every day. Vince wanted him to work out the back and help the other workers lifting but the plaintiff could not cope with these duties. The plaintiff and Vince had a heated altercation. In cross examination the plaintiff agreed that he was quick to anger.
108 The plaintiff was out of work for a further period on unemployment benefits and he then came under a program run by Matchworks.
109 The plaintiff was not sent for any work by Matchworks but it asked him whether he had any potential work contacts. The plaintiff suggested Angelo.
110 The plaintiff now works for Angelo at the Campbellfield premises where he worked for the first defendant. The plaintiff’s duties consist of driving a van and lifting boxes weighing up to ten kilograms.
111 The plaintiff presently works fifteen hours per week, five days a week three hours a day doing different jobs having commenced this job working ten to thirteen hours per week. The plaintiff is paid fifteen dollars per hour. The going rate for a labourer doing full duties in the meat industry is twenty dollars per hour. With his Newstart payments the plaintiff receives in total $380 to $400 per week.
112 In cross-examination the plaintiff said he will increase his hours when he is able to do so, denying he had not done so because of his court case. He is “making an attempt”. He is working because he needs the money. Dr Portelli has recommended he continue working fifteen hours for a while until “we build up our hours”. “When I get fit enough to lift my hours, I will lift my hours.”
113 The plaintiff has discussed with his case worker that he eventually intends to increase his hours. The plaintiff has not had such a discussion with Dr Portelli in the last six months.
114 The plaintiff copes okay with his current work. He has his days. At the end of a three hour shift, he “can feel it, but it is okay.” He feels tired and sore. He does not feel as much pain as he felt when doing the heavier work. He could not go back to heavier work or do his current duties thirty five or forty hours a week, “because he would be paying for it the next day and the next week he would be really feeling it”.
115 In re-examination the plaintiff said he could not have a job sitting for too long. He would get restless and have to stand up. His present level of pain would not enable him to build up his hours and if his back miraculously came good he agreed he would want to increase his hours.
116 The plaintiff has had to take the occasional day off since returning to work with Angelo because he was not feeling well and was a bit sore in his back and buttocks. The plaintiff’s heroin habit is presently under control and he has not missed any work because of it.
117 The plaintiff finds it a source of frustration and concern that he is limited in the amount of work he can do and that is not likely to improve in the future.
118 Before the first date, the plaintiff relied on his physical capacity to work and he now finds it demeaning and depressing to be unable to work normally, as he did before that time. Before starting up his small mobile mechanic repair business he could work seven days a week if necessary prior to the first date.
119 The plaintiff continues to see Dr Portelli who prescribes Panadeine Forte, Voltaren, and an anti-depressant, Endone. The plaintiff was put on Endone in May 2010 because he was getting addicted to Valium. He sees Professor Paoletti every two to three weeks and takes Suboxone prescribed by Dr Bowes to treat his heroin addiction.
120 In cross-examination the plaintiff agreed that he has attended numerous other medical clinics during the time he worked for the first defendant. He sees doctors at Hughes Parade when he cannot get into the Lalor Clinic. Dr Al- Waali at Hughes Parade gives him injections into his back. In cross- examination, the plaintiff agreed he had not been referred to an orthopaedic surgeon.
121 The plaintiff currently lives alone in a two bedroom unit in Brunswick, which he can look after. He does some light dusting and can vacuum the floor because it is not such a big place.
122 Before the first date, the plaintiff had a good social life and went out regularly with his friends. Since suffering injury in the first incident, apart from work, he does not have much social activity because he does not have any money. He walks to see his mother who lives locally a few minutes away. Other than that, he just watches television.
123 The plaintiff cannot drive for a prolonged period of time because he finds it difficult to sit without moving for more than a short period. He has to take care with activities involving bending, twisting or lifting as otherwise he can get increased pain down the back of each thigh, and they also can become numb.
Summary of the Plaintiff’s Taxable Income
Gross Income from
Year Ending 30 June Personal Exertion 2004 $19,228
2005 $26,818
2006 $26,312
2007 $20,240
2008 $15,104
2009 $23,098
2010 $12,268
124 2010 includes back payments of compensation of $11,240.
125 A printout of the plaintiff’s pay records sets out payments made to him by the first defendant until the week ending 6 April 2007. Each week from 7 July 2006 onwards the plaintiff was paid a gross wage of $506 per week on an hourly rate of $13.31.
126 At the end of that print out it was noted the plaintiff was paid a further sum of $1,619 representing three weeks pay for three years’ continuous service and one day of holiday pay.
Other Documentation
127 A Centrelink employment separation certificate signed by “S Straughen, Payroll Admin” on the first defendant’s behalf on 6 April 2007 set out that the plaintiff started working on 6 October 2003 and last worked for the first defendant on 6 April 2007. His employment was terminated due to change of management.
128 The register of injuries set out the plaintiff ‘fell over on 10 May 2006’ and hurt his neck and back. The incident was witnessed by Angelo.
The Plaintiff’s Medical Evidence
129 Dr Portelli reported on 15 May 2007 that the plaintiff was seen at the Lalor Clinic on 2 October 2006 by Dr Rigoni with exacerbation of low back pain and he was referred for investigations. The plaintiff was seen again the following day by Dr Rigoni and referred for physiotherapy.
130 The plaintiff then did not attend the Lalor Clinic for approximately six months and next presented on 10 April 2007 with a history of recurrence of back pain by lifting on 4 April 2007. He was again referred for physiotherapy and given time off work.
131 On review on 1 May 2007, the plaintiff was still in significant pain and had associated anxiety and depression. He was given further time off work. At that stage, it was hoped the plaintiff would improve and be able to return to light work.
132 Dr Portelli reported on 4 March 2008 that the plaintiff’s condition at that time was that he was currently unable to perform any work and he was totally incapacitated. He thought the plaintiff also suffered from anxiety and depression.
133 On 25 March 2008, when examined by Dr Portelli, the plaintiff was still complaining of back pain but felt he might be able to attempt light duties involving deliveries. Dr Portelli suggested the plaintiff may try three hours work a day for five days a week and he provided a certificate for light duties.
134 When seen by Dr Rigoni on 7 and 21 May 2008, the plaintiff advised he was able to manage that level of work and it was suggested he continue with the work trial.
135 When seen by Dr Rigoni on 18 June, the plaintiff was still complaining of recurrent back pain. However, he stated he was able to work on the light duties approximately four hours a day.
136 Dr Portelli noted that since July 2008 the plaintiff was seen on a monthly basis and was certified fit for light duties for approximately twenty hours a week. In December 2008, the plaintiff’s back pain improved and he stated he was able to work thirty eight hours a week on light duties and continued to do so until February 2009.
137 The plaintiff did not attend the Lalor Clinic again until November 2009 when he stated he was not able to work because of back pain and he was given a certificate for sickness benefits.
138 In January 2010 the plaintiff saw Dr Rigoni and was given a further certificate and also prescribed Lexapro for depression.
139 Dr Portelli saw the plaintiff in February 2010 complaining of significant neck and back pain and he was not able to work. The plaintiff was given a certificate for a further three months. He was quite anxious and depressed and it was recommended he continue to see Professor Paoletti.
140 On review in April 2010 Dr Portelli gave the plaintiff a further certificate for three months sickness benefits as his condition had not improved. As of 19 October 2010, the date Dr Portelli last reported, the plaintiff had not been seen since April 2010.
141 Dr Portelli thought it was most likely the plaintiff’s condition was related to work and that he had no capacity for work at that time. As the plaintiff had not been able to work for almost a year, Dr Portelli thought that his future prognosis would have to be guarded. He was unable to say if the plaintiff’s condition had stabilised as he had not seen him for some months.
142 In examination-in-chief, Dr Portelli confirmed he wrote to the Transport Accident Commission (“the TAC”) in October 1999 in relation to the injuries suffered by the plaintiff in the 1998 car accident in which he advised the information from Bethesda did not refer to a back injury. He also raised with the TAC the fact that the plaintiff had sustained a back injury in the 1994 car accident and that he thought that was definitely aggravated, amongst other problems, in the 1998 accident. He regarded the plaintiff as totally incapacitated for work in September 1999.
143 Dr Portelli’s notes indicated that during 2002 to 2003, before the plaintiff started working with the first defendant, he was not really having much trouble at all with his back. The Tramal being prescribed in 2002 was probably more for the plaintiff’s knee pain and the plaintiff was sent to Mr Wilde, orthopaedic surgeon, in relation thereto in September 2003.
144 The next reference to any back pain in the notes is 21 September 2005 when the plaintiff saw Dr Atkin in this regard. The next reference thereafter was on 15 May 2006, following the fall when the plaintiff was prescribed Tramal.
145 The plaintiff continued to attend the clinic over the following months. He complained to Dr Rigoni on 2 October 2006 of a low back spasm getting out of the car and reported a recurrence on 4 April 2007 after lifting.
146 Whilst he noted on 16 August 2007 that he would refer the plaintiff to an orthopaedic surgeon if he was no better, Dr Portelli had not in fact done so. He could not exactly remember why but he knew financial problems were an issue for the plaintiff at that time.
147 In cross-examination, Dr Portelli confirmed he had described the May 2006 incident as “a recurrence”.
148 Dr Portelli was aware Dr Lim and also Dr Widjaja at Epworth Hospital were treating the plaintiff for back pain in the late 1990s but he queried whether the plaintiff’s complaints at that time were serious.
149 Dr Portelli made no reference in his reports to the plaintiff’s alcohol or drug abuse problems although he was aware of them. There was no mention of the overdose in his notes.
150 Dr Portelli agreed that the 1999 MRI scan of the plaintiff’s lumbar spine showed multi level disc protrusions and central canal stenosis at L4-5 and that by the end of 1999 he knew that the plaintiff had, in layman’s terms, degenerative discs. The progression of that condition was uncertain and it would not surprise him, especially given the nature of the plaintiff’s work that was quite heavy, that the plaintiff reported episodes of low back pain from time to time.
151 When asked about the entry of 30 December 2008 where Dr Portelli noted that the plaintiff could work 38 hours a week, he explained that this was light work and his understanding from the plaintiff was that the plaintiff was doing lighter packing work involving lighter weights.
152 Dr Portelli was shown the film of the plaintiff at work on 18 and 20 November 2008. When it was put to him that the plaintiff was moving without apparent restriction, Dr Portelli said the plaintiff was moving the trolley but he was moving it in the correct way, not carrying it long distances. He agreed the plaintiff was shown loading and unloading. He was not sure how freely the plaintiff was walking.
153 Dr Portelli had “always advised the plaintiff to try and return to work where there is a limited capacity as much as possible”.
154 Dr Portelli explained that the film “did not tell us that the plaintiff does not have pain” and he still thought the plaintiff probably had a limited work capacity compared to his previous work moving heavy carcasses.
155 Dr Portelli was not sure but said it was possible the plaintiff may have aggravated his back in a number of ways.
156 Dr Portelli really did not answer whether the plaintiff had complained of spasms before injuring himself at work with the first defendant. The plaintiff had complained of pain in the lower back but Dr Portelli was not sure whether it could be said they were spasms or just recurrent episodes of pain.
157 Dr Portelli confirmed that there were no attendances before the overdose on 9 May 2006 from 21 September 2005 to indicate the plaintiff was being prescribed Valium or any other medication at his clinic.
158 Dr Portelli said Mr Hooper’s view was “an opinion” but he would not necessarily agree with it and there was a possibility it was accurate. Dr Portelli agreed a lot of the plaintiff’s symptoms were due to degenerative disease but he thought that there was very likely to be an element of aggravation due to the work related injuries because of the plaintiff’s ongoing pain.
159 In January 2011, Dr Portelli discussed the plaintiff’s return to work with him. The plaintiff told him at that stage he was working three hours a day and trying to “sort of get back into the workforce” and he was doing light packing similar to what he was shown doing on the video.
160 Dr Portelli thought the plaintiff would like to increase his hours if he was able to but Dr Portelli thought at this stage it was probably reasonable what the plaintiff was doing and he had discussions with WorkCover in this regard. Dr Portelli agreed it was possible that the plaintiff as shown on the video could work more than fifteen hours a week.
161 When asked what had changed since he had certified the plaintiff fit for thirty eight hours of light work at the end of 2008, Dr Portelli said that the plaintiff had various episodes of pain in the past and he had stated he was not able to work those hours. Dr Portelli considered the history of having pretty much chronic or recurrent back pain was the reason for the plaintiff’s reduced capacity since late 2008.
162 Once litigation finished Dr Portelli hoped the plaintiff may be able to increase his work hours.
163 In re-examination, Dr Portelli explained there had been a significant deterioration in radiological terms from the 1999 MRI to the more recent MRI which he thought could have been related to heavy labouring or a fall on the buttocks.
164 Dr Portelli thought the plaintiff’s left sided complaints were consistent with the findings on MRI scan. Dr Portelli considered the findings on the more recent MRI were more than you would expect from just natural deterioration and he that it would be consistent with an injury. He thought it was most likely work related given the fact that the findings had significantly changed from the previous MRI.
165 In terms of the future, Dr Portelli thought that given the investigation findings the chance of improvement was unlikely and given the fact that the plaintiff was only forty five, “you might expect with time his condition was more likely to worsen and accelerate if his work was heavy in nature.”
166 He thought the plaintiff definitely could not get back to the old heavy work. If he was able to get some lighter work given the fact of his level of education, it was unlikely the plaintiff could find alternative type work.
167 Dr Portelli agreed it was consistent with the plaintiff’s radiological findings that he could not sit or stand for a long period of time and needed to move around and that after three hours of relatively light work his back was sore.
168 Dr Portelli was asked about the way the plaintiff leant into the front passenger side of his van, shown on video, sticking his leg in the air as he did so. Dr Portelli explained it was sometimes an involuntary thing people do without thinking to lessen the bending of the spine.
Certificates
169 Dr Portelli certified the plaintiff unfit for work due to “recurrence for fall 10 May 2006” from 10 April to 24 April 2007. From 26 March to 9 April 2008 and 9 April to 7 May 2008. Dr Portelli thought the plaintiff was fit for modified duties:
“To try light duties three hours a day, five days a week. Can do deliveries
and customer service.”
170 From 21 May to 18 June 2008, Dr Rigoni certified the plaintiff was fit for light duties, four hours a day, five days a week.
Clinical Notes
171 The notes of the Lalor Clinic commenced on 17 March 2000, at which time the plaintiff was being prescribed Valium and Digesic.
172 Until 21 September 2005 there was no reference to a back injury.
173 On that day, Dr Atkin noted:
“In meat industry for 3½ years and has a few minor incidents. This episode started four weeks ago, but acutely sore this a.m. and can’t put on his socks.”
174 On examination there was extreme tenderness over the lower back area but not too much spasm.
175 On 15 May 2006, Dr Portelli noted that the plaintiff:
“Slipped over at work on wet floor and injured lower back on 10 May 2006.
Still complains of back pain, also injured left shoulder.”
176 On musculoskeletal examination there was decreased range of movement, localised tenderness lower back and shoulder. Radiology was ordered.
177 On 19 May 2006 Dr Portelli noted the plaintiff still had back pain and was unable to work at that stage. Musculoskeletal examination revealed decreased range of movement and localised tenderness of the lower spine. A CT scan was ordered.
178 On 2 October 2006, Dr Rigoni noted:
“Since April has had back pain. Worked on today. Went to work but getting out of car spasm in lower left buttock works as a labourer worked four hours today.”
179 More radiology was ordered.
180 On 3 October 2006, Dr Rigoni noted pain, lower back, left/right thigh and Mobic was prescribed.
181 On 10 April 2007, Dr Portelli noted:
“Last came six months ago. States has been at work over last months but
sustained recurrent back pain on 4 April 2007 at work after lifting.”
182 On 1 May 2007, Dr Portelli noted:
“WorkCover visit. Still has back pain. No better at all. Also stated he’d
been at the Melbourne Clinic for two weeks under Dr Paoletti.”
183 On examination, Dr Portelli found decreased range of back movement and localised tenderness of lower back.
184 There were WorkCover visits with Dr Portelli on 18 May, 19 June, 19 July, 2 August and 16 August 2007.
185 On 11 September 2007 Dr Portelli noted the plaintiff had done a course in security and may be able to find work soon.
186 On 9 October 2007, the plaintiff reported back pain and there was localised lower back tenderness. There was a long discussion about legal issues and it was noted WorkCover was not accepted yet.
187 The plaintiff reported back pain on 12 November and 21 December 2007 and 24 January, 6 and 26 February 2008. He was unable to work and he was concerned he was not receiving WorkCover payments.
188 On 25 March 2008, Dr Portelli noted the plaintiff had improved with back pain. The plaintiff felt he may be able to attend light duties involving deliveries and customer service. There was a long discussion and advice about a job and it was suggested the plaintiff try working three hours per day, five days a week.
189 On 7 May 2008 Dr Rigoni noted the plaintiff was coping working three hours a day, and it was planned to continue light duties and review in two weeks – “? increase hours.”
190 On 21 May 2008, Dr Rigoni noted the plaintiff had been coping doing, customer service delivery, light duties for fifteen hours a week – “feels he can try twenty.”
191 As at July 2008, the plaintiff was working light duties twenty hours a week and coping. On 11 August, Dr Portelli reported the plaintiff still had back pain, case not settled.
192 On 9 September 2008, Dr Portelli noted the plaintiff was working twenty hours a week. On 6 November 2008, the plaintiff was working part time. There was a long discussion and reassurance.
193 As of 18 December 2008, Dr Portelli noted “working 20 hours a week and could possibly increase in future after reassessment”.
194 On 30 December 2008, Dr Portelli noted the plaintiff could work 38 hours a week. The plaintiff was doing so on light duties when examined by Dr Portelli on 5 February 2009.
195 On examination on 28 February 2009, Dr Atkin noted that the plaintiff said he had been working for A Porchetta and was asked to lift a twenty eight kilogram bag by his boss. Two evenings ago he felt a strong pull in the right shoulder when he was lifting. That morning he had difficulty using his right hand. There was some settlement of that pain on examination on 3 March 2009 when there was no mention of back pain.
196 The plaintiff was not able to work when next examined on 11 November 2009. He was having recurrent back pain and requested a DSS certificate.
197 On 23 February 2010 there was counselling and Lexapro was prescribed for depression. The last entry on 20 April 2010 set out the plaintiff needed a three month certificate for DSS and there was a long discussion re pain.
198 Professor Paoletti, psychiatrist, first saw the plaintiff in the 1990s as a result of a relapse of depression and drug abuse/ addiction in the context of pain associated with two car accidents.
199 There was a gap in attendances between 22 August 2002 until 19 April 2005 and Professor Paoletti has seen the plaintiff sporadically since.
200 Professor Paoletti reported that the plaintiff started taking drugs in the context of unresolved grief over his brother’s death and then his broken marriage, starting with marijuana, then some speed and later using intravenous heroin on and off.
201 Professor Paoletti noted however, the plaintiff subsequently adjusted reasonably well and was working as a maintenance worker for Australian Marble and had been off drugs for a year until 24 November 2004, when he was the victim of a hit and run accident in which he suffered major damage to his left ankle. Professor Paoletti noted the plaintiff eventually made a remarkable functional recovery, but not before going through a period of relapse and depression and drug abuse in the context of pain disorder.
202 During that time, the plaintiff required in-patient and out-patient treatment and eventually made a reasonable recovery. He was in the Melbourne Clinic under Professor Paoletti’s care for three admissions between 1995 and 1997.
203 In the aftermath of that episode, the plaintiff managed to get a job as a marble cutter but he was retrenched. He then had a relapse of drug abuse leading to a motor vehicle accident where he hit two parked cars.
204 The plaintiff was then involved in another car accident on 10 November 1998 in which he sustained several orthopaedic injuries with his right leg coming close to amputation.
205 Professor Paoletti noted that once again, the plaintiff made an amazing physical recovery although his recovery from the inevitable relapse of his depression and drug abuse addiction in the context of multiple pains lagged behind.
206 The plaintiff was seen again by Professor Paoletti on 19 April 2005 at which time he noted the plaintiff was quite well despite a turbulent orthopaedic history and requiring knee surgery in 2004.
207 The plaintiff was then on a Bupronorphine (“the drug”) maintenance program with Dr Bowes and he had returned to see Professor Paoletti, hoping to wean himself off the drug. However, the plaintiff was advised against weaning off the drug as apart from its opiate substitution role, it actually had an analgesic effect.
208 The plaintiff next attended Professor Paoletti on 2 November 2005, wanting again to stay off the drug because he somehow blamed it for depression. Resisting the plaintiff’s wish was futile and, after discussion with Dr Bowes, there was a gradual monitored weaning as an alternative to the plaintiff’s wish “to jump off”.
209 At the end of that interview, the plaintiff told Professor Paoletti he had fractured some ribs at work a week or two earlier.
210 The plaintiff did well initially weaning off the drug but did not adhere to an agreement to join Narcotics Anonymous and see a psychologist. Consequently, by March 2006, when he reduced his intake of the drug he used heroin a couple of times. The plaintiff and Dr Paoletti went through a turbulent period with emergency calls and a semi-urgent appointment in April but the plaintiff would not re-increase the drug.
211 Professor Paoletti reported the next milestone was on 9 May 2006 when the plaintiff sought to contact him and told his receptionist he had over dosed on twenty five tablets and she advised him to call an ambulance. Professor Paoletti telephoned the plaintiff at home and was told he had taken twenty Valium tablets but he was better by then.
212 The next day the plaintiff told Professor Paoletti that a couple of weeks earlier he had a flu like illness and was unable to work because of the refrigerated environment but his brother, his boss, would not accept the plaintiff’s general practitioner’s decision.
213 The plaintiff advised Professor Paoletti that he was expected to work beyond paid hours until he finished work and that he was not being paid properly.
214 Whilst his brother, Angelo, did not usually mind him going to the doctor, when the plaintiff came to see him the day before, Angelo told him he “did not give a fuck about his psychiatrist”, and then when the plaintiff went to leave, he tripped on the wet floor flat on his back with a brief loss of consciousness. He had a sore hip for which he was going to attend the Northern Hospital.
215 There were further attendances in June and August when the plaintiff was gradually resettling and continuing to work for his brother with higher pay and was working for himself as a mobile motor mechanic.
216 Professor Paoletti noted the plaintiff tended to cancel or miss appointments when he was settled and he did not see him again until April 2007 when there were two brief admissions at the Melbourne Clinic to resettle the plaintiff. The plaintiff had stopped taking the drug with a consequent spate of opiate and alcohol abuse and he was recommenced on a higher dosage of the drug.
217 There followed a period of exacerbated back pain following heavy lifting at work, after which Dr Portelli sent the plaintiff for tests and he was given Panadeine Forte. The plaintiff went off the drug for a while so he could use heroin for pain control.
218 Professor Paoletti noted the plaintiff’s animosity to the first defendant was exacerbated by difficulty in getting his WorkCover case approved, but by July 2007 the plaintiff was more settled and considering returning to work, although it was noted an adverse factor was that the employer was apparently trying to say the plaintiff was not at work on the day of the injury. Conciliation was to take place.
219 On review on 14 September 2007, Professor Paoletti noted the plaintiff had done a security course and he seemed brighter. He was not then seen again until 19 March 2008 when he told Professor Paoletti he had worked six or seven weeks in security, but with all the walking, his feet and back pain had exacerbated and he had to give it up.
220 When seen on 16 April 2008 following an urgent request for an appointment, the plaintiff told Dr Paoletti he had been using heroin just about every second day over the previous fortnight. The plaintiff had periods of anger at the WorkCover insurer for not accepting liability and leading him into debt. He had resettled on 30 April 2008 and was not using heroin or alcohol and was generally brighter. He was also engaged in a return to work plan of three to four hours a day.
221 Professor Paoletti reported in May 2008 that the plaintiff first mentioned a work injury at the end of the session on 2 November 2005 when he mentioned fractured ribs. The next mention of an injury was at the interview on 10 May 2006 when the plaintiff told of the altercation with his brother and slipping earlier that day hitting his head and back and, finally, at the session on 11 May 2007 the plaintiff said there had been an exacerbation of back pain following a period of heavy lifting at work.
222 As of May 2008, Professor Paoletti diagnosed opioid dependence and alcohol abuse with an associated depressive disorder which derived from multiple factors including unresolved grief over the murder of his brother, two major car accidents and, more recently, injuries and stressors in the current place of employment.
223 Professor Paoletti considered the plaintiff had a current capacity for employment within his physical limitations. He noted there had been periods during all of this when the plaintiff had been unfit, but at present he thought the plaintiff should continue with the return to work plan. At that stage, Professor Paoletti described the plaintiff as being in a state of “precarious stability”.
224 The plaintiff was then seen twice by Professor Paoletti in October 2008 and once in November and December. He was again seen on 12 May and 30 September 2009 and on 25 October 2010.
225 On examination on 1 October 2008, the plaintiff reported that on about 25 September he had had another accident when he had fallen asleep and hit a parked car. He was working more than before and he was tired.
226 On the most recent attendance in October 2010, the plaintiff told Professor Paoletti he was working usually two to three hours a day but had days off due to back pain. He was taking the occasional Endone for pain but avoided it. Valium helped his back but he did not take it because of its addictive nature. He was then taking Lexapro, ten milligrams in the morning, and being prescribed the drug by Dr Bowes.
227 Professor Paoletti’s opinion and diagnosis had not changed. In his view, the incident at work remained a significant contributing factor through continuity of symptoms and through the content of the mental processes.
228 Professor Paoletti noted the plaintiff had a premorbid history but the work related issues were at the fore in this episode which had now been active since the incident. He thought the plaintiff should remain at work within his physical limitations if that assisted his emotional state which remained in a state of precarious stability. The prognosis remained uncertain.
229 Dr Al-Waali at the Hughes Parade Medical Centre in Reservoir reported that he first saw the plaintiff on 6 April 2009 due to an injury to his finger. The first time the plaintiff attended the Medical Centre, he mentioned he had a car accident in 1995.
230 The plaintiff attended for back pain/sudden onset muscle spasm. He was prescribed Voltaren and Diazepam was given as a muscle relaxant.
231 On 22 September 2010, the plaintiff mentioned he had had an accident in 1999 with his back. He advised he was going to see his orthopaedic surgeon for his back that day. On 13 September 2009 the plaintiff had asked if he could have an injection for his back.
232 In this short confusing report, Dr Al-Waali advised the plaintiff was seen for his work condition once only and a WorkCover certificate was given once only for two days.
Medico-Legal Evidence
233 Mr Peter Scott examined the plaintiff on 28 June 2007 at the request of QBE.
234 The plaintiff told him that on 2 October 2006 he slipped on a wet floor and fell on his back. On his return to work, the plaintiff continued to complain of some ache and discomfort in the back, particularly with bending and lifting boxes of meat.
235 Then, on 4 April 2007, the plaintiff stated he simply bent to pick up a 27.2 kilogram box of meat, twisted and experienced severe pain, aggravating his pre-existing back problem.
236 The plaintiff told Mr Scott that in 1997 he was involved in a car accident in which he sustained a back injury together with leg injuries, which was associated with a worsening of his emotional condition. The plaintiff was then off work for some three or four years. Mr Scott understood that most of the plaintiff’s problem was due to psychosomatic problems.
237 Mr Scott formed the impression that the backache which developed in 1997 largely recovered after some years of inactivity, but recurred on 2 October 2006.
238 On examination, movements of the plaintiff’s lumbosacral spine were grossly restricted in all directions, and he appeared to be voluntarily resisting movements. The plaintiff complained of marked pain at the extremes of those movements in all directions, and the pain was experienced in the lumbosacral spine. There was no tenderness over the sacroiliac joints, but the plaintiff complained of marked tenderness over the lumbosacral spine to the left and right of the midline posteriorly. Straight leg raising on the left and right side was 20 degrees on the horizontal, associated with the complaint of severe back pain.
239 There was a full range of movements of all lower limb joints, and there was no other lower limb abnormality of motor power, tone, sensation, reflex activity, or circulation.
240 Having seen the 2006 CT scan of the lumbosacral spine, Mr Scott believed that the first defendant should accept liability for the plaintiff’s ongoing back problem, which became apparent on 2 October 2006 under compensable circumstances, and was aggravated on 4 April 2007.
241 At that time, if one were to consider the plaintiff’s back problem alone, then Mr Scott thought he would be fit for light work only which did not require prolonged standing or sitting or repetitive bending or lifting more than five kilograms, but he noted the plaintiff’s back problem had been significantly compounded with worsening of his pre-existing psychiatric condition.
242 Mr Scott thought the plaintiff’s back condition had not resolved, and that his symptoms appeared to be deteriorating, as did his psychosomatic problems. He believed the plaintiff would be fit for very light work only with the restrictions, if one were considering the organic disability alone. However in view of the associated apparent severe psychosomatic problems, Mr Scott suggested the plaintiff was totally unfit for work and that this aspect of his disability required interpretation by a consultant psychiatrist.
243 Mr Scott considered the plaintiff’s organic disability related to the injury sustained and the aggravation of underlying discogenic problems at L4-5 and L5-S1 with some possible lumbosacral nerve root irritation. He thought the plaintiff required more intensive treatment for his chronic low back pain and associated psychosomatic problems.
244 Mr Scott diagnosed a condition of chronic low back pain, aggravated degenerative processes of the lumbosacral spine, intermittent lumbosacral nerve root irritation, and apparent aggravation of a pre-existing significant psychosomatic disorder associated with drug addiction.
245 Mr Scott then thought the plaintiff was totally unfit for work and he strongly recommended review in about six months’ time.
246 Mr Schofield, orthopaedic surgeon, first saw the plaintiff on 14 November 2008. The plaintiff told him that on 1 October 2006, whilst working in the boning room, he slipped on the wet floor and fell on his back. Over the next nine months, his symptoms persisted and he was unable to resume work. After that time, he was able to resume work on restricted duties which he had continued to do ever since. His job included customer service and telephone answering, which he did for five hours a day.
247 Mr Schofield noted the plaintiff denied any history of any back pain prior to the fall.
248 The range of lumbar movement was markedly restricted on examination in flexion and extension. Straight leg raising was 40 degrees on the right and 50 degrees on the left. Neurological examination revealed some numbness over the right anterior thigh, normal power and a reduced left ankle jerk.
249 Mr Schofield arranged for x-rays which demonstrated a reduction in disc height at L4-5 and also end plate osteophytes at that level, indicating a chronic situation.
250 Mr Schofield initially concluded that the severe jarring force in the fall had caused a significant jarring of the plaintiff’s spine with a prolapse being noted on CT at L4-5. The reduced height noted on the occasion of the first CT indicated pre-accident degenerative change of a constitutional nature. Mr Schofield then thought the plaintiff was not fit for his pre-injury employment and noted he was coping with the restricted duties described.
251 The plaintiff’s solicitors then advised Mr Schofield that there were two separate injuries, the first on 6 October 2006 and the second on or about 4 April 2007. A supplementary report was requested dealing with the second injury.
252 In his opinion, following receipt of this further information in relation thereto, Mr Schofield stated that six months after the October 2006 incident, the plaintiff had an exacerbation of pain whilst bending to pick up meat.
253 Mr Schofield thought that the incident on 4 April 2007 was an exacerbation, not a new injury. He noted six months was not long enough for any disc injury to heal so that any bending, lifting, twisting or even coughing could cause an acute exacerbation in the presence of the injury which was still present and which was slowly improving.
254 On 13 January 2009, Mr Schofield further reported, commenting on the December 2008 MRI.
255 Mr Schofield noted the conclusion reached was that the most degenerative change was seen at L4-5 with a small amount of extruded disc and gas within the disc space. The retrolisthesis indicated instability. The most severe changes causing left sciatica were at the lumbosacral level with severe impingement of the exiting L5 nerve root.
256 Mr Schofield thought the plaintiff’s clinical signs of lumbar stiffness and bilateral limited straight leg raising were consistent with the MRI pathology at both levels.
257 Mr Schofield diagnosed aggravation of pre-existing degenerative change causing a disc prolapse at the lumbosacral level and aggravation of degenerative change and a disc bulge at L4-5. He considered the major injury occurred on 1 October 2006 with an aggravation of the persisting prolapse in April 2007. Mr Schofield thought the plaintiff had no capacity for pre-injury employment but was then fit for only light duties not involving repetitive bending or lifting.
258 Mr Schofield thought there was a likelihood of further deterioration and ultimately that the plaintiff would be a candidate for decompression and stabilisation at surgery at L4-5 and lumbosacral levels.
259 When the plaintiff was re-examined on 24 September 2010, Mr Schofield noted he was then working with a disability group in a sedentary type occupation of customer service, working between ten and fifteen hours a week in a voluntary capacity.
260 The plaintiff continued to complain of low back pain present almost all the time.
261 Mr Schofield thought the plaintiff was an honest witness. On examination there was normal lumbar lordosis with low lumbar tenderness. The plaintiff could bend forward very tentatively. There were similar findings in terms of straight leg raising to the earlier examination. There was a reduced left ankle jerk. Further x-rays were ordered. There was no significant alteration of clinical signs.
262 Mr Schofield noted the plaintiff said he was coping with restricted employment but taking a lot of medication which Mr Schofield believed could not be sustained in the long term without complications. He thought the prognosis for the future was poor with regard to sustaining any work and he considered the plaintiff was a candidate for surgery.
263 Mr Schofield organised a lumbar spine x-ray on 29 September 2010 which showed moderate lipping of the L4-5 disc space with moderate anterior end plate spondylotic lipping.
264 Mr Schofield was then sent the 1999 MRI and a number of reports relied upon by the defendants as to the condition of the plaintiff’s back prior to injury with the first defendant.
265 Mr Schofield noted he had no record of any previous back problems and there was no doubt that, as a result of the heavy work the plaintiff was doing for five years in a boning room, he would have had a strong back. As a result of slipping incident, the plaintiff was never able to resume his previous occupation, having initially been off work for nine months.
266 Mr Schofield concluded that, despite pre-existing back pain and lumbar stiffness, the plaintiff had been engaged as a boner for five years meaning he was able to withstand constant physical work.
267 Mr Schofield noted the records indicated the major area of complaint was the prolapse at L2-3, although the plaintiff did have evidence of prolapses or bulges at the lower levels. That complaint clearly was not sufficient to stop him from working.
268 As a result of the added information, Mr Schofields’ opinion did not alter and he remained of the opinion the plaintiff had suffered a significant aggravation of degenerative change in his back as a result of the October fall.
269 Mr Schofield was then forwarded the plaintiff’s most recent affidavit detailing three incidents at work in which he described his work at the meatworks between 2003 and 2006 as being consistently physical and complained of only occasional back pain requiring a couple of days off here and there.
270 Mr Schofield noted, on the recent available evidence from the plaintiff’s affidavit, it was clear that he had previous back injuries and pain until May 2006 but he was able to resume work as a labourer. The x-rays indicated chronic changes had been slowly progressing over a number of years, particularly affecting L4-5, where there was gas in the disc space and instability on the erect functional views. He considered those degenerative changes would have been well established while the plaintiff was working with only minimal periods of time off between 2003 and 2006. Noting the three incidents and the aggravations therein, Mr Schofield reported that since April 2007 the plaintiff had been only able to perform light duties on a part time basis. He thought the plaintiff’s condition would not improve into the foreseeable future and the only long term relief was likely to follow surgery.
271 The plaintiff was examined by Mr Gerald Moran on 22 October 2008 for the purposes of a Section 98 C assessment.
The Defendants’ Medical Evidence
272 Dr Kostos, rheumatologist, examined the plaintiff on 19 May 2000 on behalf of the TAC in relation to the 1994 and 1998 car accident injuries.
273 At that time the plaintiff was basically complaining of problems from the waist down. He got left sided lower back pain, with pain throughout his left leg associated with the foot drop which was a result of a lesion to the common peroneal nerve at the knee.
274 On examination, the plaintiff’s back movements were markedly restricted with pain in all directions and this was associated with pain in axial compression and simulated rotation.
275 Dr Kostos noted that the plaintiff also claimed to have been having back problems and for some reason an MRI scan had been performed but the reason that was done was not apparent to Dr Kostos. He noted the plaintiff clearly did not have any evidence of nerve root involvement and therefore there was not any question of an MRI scan being helpful in this particular situation. He noted the plaintiff seemed to be worried about a disc problem but that he should be reassured that disc problems are quite common on MRI scanning, even in people without back pain. Dr Kostos thought there were non-physical factors preventing the plaintiff from working.
276 The plaintiff saw Dr Pathak on 20 April 1999 at Preston Central Clinic in order to go on the Methadone program for heroin addiction.
277 At that stage, the plaintiff complained of constant low back pain, buttocks and posterior thigh pain to the knees, which got worse by activity. The pain was relieved to a great extent by Methadone oral syrup.
278 Dr Pathak diagnosed myofascial pain syndrome and discogenic pain. He thought there was multilevel disc protrusion with a moderate degree of disc cranial migration of the L2-3 disc material shown. Central canal stenosis was produced at the L4-5 level.
279 Mr Michael Flaim, surgeon, saw the plaintiff at the request of his then solicitors on 21 March 2001. The plaintiff told him of the two motor vehicle accidents.
280 On examination, the plaintiff complained of back pain, which was his most severe complaint, with problems with his back seizing up with bending and episodes of low back pain lasting one to one and a half weeks.
281 Mr Flaim thought there were no objective features of the back injury, but the MRI scan showed multilevel disc degeneration. He felt the plaintiff’s more significant injuries were his left knee and leg.
282 The plaintiff saw Mr Flanc, general and vascular surgeon on 4 April 2001 in relation to the injuries suffered in the 1998 car accident.
283 The plaintiff told Mr Flanc there was an occasional spasm of severe low back pain and at other times he had to be very careful when he moved. There had been no improvement in the plaintiff’s left foot drop and he had a sling to keep his foot up.
284 On examination, there was no local tenderness in the lumbar spine and movements were moderately restricted.
285 Mr Flanc noted the MRI scan showed diffuse degenerative disc disease with disc prolapse. He thought it was likely that the degenerative disease had been present even before the 1998 car accident and he noted the plaintiff had a history of low back pain following the 1994 car accident.
286 Mr Flanc then thought the prognosis for low back pain would be that there might be still some improvement over the next year, although the plaintiff may be prone to recurrent pain.
287 The plaintiff first attended St Vincent’s Hospital on 10 November 1998 following the third car accident. Injuries to the left knee and right arm and leg were noted with no reference to a back injury.
288 The plaintiff was reviewed at St Vincent’s Outpatients on 11 January 1999 and at the Orthopaedic Clinic on 22 February and 24 February 2000. Notes of those attendances did not refer to a back complaint.
289 At the Orthopaedic Outpatient Clinic on 27 February 1999 it was noted that the plaintiff was getting bilateral knee pain and lower back pain and a lumbar spine MRI scan was therefore organised. The scan showed evidence of multiple levels of central disc herniation of the lumbar spine, including L2-3, L3-4 and L4-5. The herniation at L2-3 and L3-3 showed no evidence of spinal canal stenosis, however the disc herniation at L4-5 showed some degree of central canal stenosis.
290 The plaintiff was then reviewed in the Orthopaedic Outpatient Clinic on 13 December 1999 complaining of similar symptoms, so a conservative approach was taken at that time. On examination on 24 July 2000 it was noted that the plaintiff’s back pain and left foot drop had persisted and he was to be reviewed at a later date.
291 Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff on 13 September 2010, noting that the plaintiff’s history was somewhat complex and he could hardly be regarded as a good historian.
292 The plaintiff told him he thought in 2006 there was a water leak and he slipped and hurt his back. At the time of the examination, the plaintiff was working three hours a day and was trying to get back into the workforce. When questioned, the plaintiff did not volunteer the two significant car accidents. The plaintiff said he did complain of back pain following those accidents, though he said his back pain settled down and he was okay. He was able to cope with his work, until he fell in 2006.
293 The plaintiff complained of back pain and right sided leg pain radiating to his knee. On examination, there was restriction of lumbosacral movement. Straight leg raising on the right was 60 degrees and on the left 80 degrees. There were no neurological signs present.
294 Mr Hooper noted the plaintiff had a history of several significant injuries over the years and had a history of low back pain pre dating the alleged incident in 2006, noting in fact an MRI scan performed at St Vincent’s prior to that date revealed the plaintiff had significant disc degenerative disease.
295 Mr Hooper thought it could be argued that the fall in 2006 was a contributory factor and aggravated the plaintiff’s back condition. Mr Hooper suspected, however, that the effects of that aggravation were not long lasting and the problems the plaintiff now had with his back were constitutional degenerative disease that had been aggravated by many of the other incidents that had occurred as well as the incident working for the first defendant, of which the plaintiff only accounted one and was not sure of the date, but said it was in 2006.
296 Noting the plaintiff was then working three hours a day, Mr Hooper commented he was best suited to light work and should not get back to heavy work that involved bending and lifting. He thought the plaintiff’s condition had stabilised and his prognosis was fair to good. He noted the plaintiff was well motivated and wanted to return to work. The plaintiff was aware he had a low back problem that would preclude him from doing work, but if he could get placed in some light activity, Mr Hooper believed the plaintiff would be able to cope.
Radiology
297 An MRI scan of the plaintiff’s lumbar spine was organised by Professor Choong on 7 October 1999. It was reported that there were multilevel disc protrusions with a moderate degree of cranial migration of the L2-3 disc material shown. Central canal stenosis was produced at L4-5 level.
298 Dr Portelli organised an x-ray of the plaintiff’s lumbar spine on 16 May 2006.
299 It was reported there was slight left sided scoliosis at L3 with some reduction in lordotic curvature. Moderate disc height reduction was seen at L4-5 with marginal spurring. There was marginal lipping at the other lumbar levels, though disc height elsewhere appeared satisfactory. The vertebral bodies and appendages appeared intact and there was no evidence of compression fracture or other lumbar vertebral injury.
300 A CT scan of the plaintiff’s lumbar spine organised by Dr Rigoni on 2 October 2006 showed a minor bulge at L3-4. At L4-5 there was loss of disc height degenerative vacuum gas phenomenon, moderate diffuse disc bulge and marginal osteophytes consistent with mild to moderate degenerative disc disease.
301 At L5-S1, there was a mild posterior diffuse disc bulge which appeared asymmetric, being more prominent on the right posterolateral position and there was slight posterior displacement of the right S1 nerve root, suggesting co-existing mild right posterolateral disc herniation of about three millimetres. The reporter posed the question - Is there clinical evidence of right S1 nerve root compression? Mild degenerative change was seen in the L5-S1 facet joints.
302 An MRI scan of the plaintiff’s lumbar spine was organised by Mr Schofield on 13 December 2008. It was reported there were signs of lumbar spondylosis.
303 Discogenic disease was most significant at L4-5, where there was a small amount of extruded disc on a background of concentric disc bulge together with facet joint degenerative change contributing to narrowing of the lateral aspects of the thecal sac with probable mild impingement of the traversing right L5 nerve root. At L5-S1, there was severe impingement of the existing left L5 nerve root, within its foramen and mild impingement of the traversing right S1 nerve root within the epidural space.
The 1998 Claim
304 A Writ was issued on 4 February 2002 in relation to the 1998 car accident by the plaintiff’s solicitors at that time, Giasoumi Papasavas Zervos Pty Ltd.
305 The particulars of injury included cognitive impairment, right shoulder, right forearm, right leg, right tibia, and back injury as well as mental reaction to trauma and development of severe depression. It was alleged that since the date of that collision, the plaintiff had been totally incapacitated for employment.
Claim Documentation
306 A Claim Form was signed by the plaintiff on 11 May 2007, setting out that he first noticed the injury/condition on 2 October 2006 and ceased work as a result of that condition on 4 April 2007. He described how he fell on tiles and landed on his tailbone and recently he was carrying a heavy box and felt back pain. The accident was witnessed by his brother, Angelo.
307 The plaintiff’s wage details as of 2007 are difficult to read. The employer’s copy of the claim form signed on 25 May 2007, set out the plaintiff was earning $506 gross per week, working 38 hours at $13.32 per hour. It set out very little detail, save that the injury was reported to Angelo and also that the plaintiff’s employment was terminated on 30 March.
308 The draft statement of claim in the present proceedings was recently amended to include the course of employment and the three incidents. Prior to that amendment a specific incident was pleaded on 2 October 2006
Certificates
309 Dr Atkin, following an examination on 21 September 2005, certified the plaintiff unfit for all duties for a week as a result of acute back strain while lifting carcases.
310 A certificate issued by Dr Portelli on 15 May 2006, set out:
“Back injury following a fall at work.”
311 Dr Mohan certified the plaintiff unfit for work from 24 April 2006 to 26 April 2006 on illness grounds.
312 On 3 October 2006, Dr Portelli issued a certificate from 3 to 6 October 2006, noting
“Recurrence for fall 10 May ’06.”
Video Surveillance
313 The defendants relied upon sixteen minutes of video surveillance taken on 18 and 20 November 2008 during which the plaintiff was shown working outside the premises at A Porchetta.
314 The plaintiff was shown dressed in meat worker’s attire, taking a couple of boxes of meat out of his own van onto a shopping trolley. He was later shown carrying bags of meat; at one time in one hand and later in both hands. The plaintiff was also shown operating a small forklift
Overview
315 The first issue for consideration is whether the plaintiff suffered a
compensable injury.
316 On opening the plaintiff’s case, counsel submitted that the plaintiff had suffered a back injury throughout the course of employment and in particular on three specific dates: 10 May 2006, 2 October 2006 and 4 April 2007.
317 It was submitted that the plaintiff suffered a back injury due to the heavy nature of his duties –“it was an accident waiting to happen.”
318 Counsel for the defendants submitted the basis on which the application was brought had changed in that the plaintiff initially alleged a specific injury in an incident in October 2006.
319 It was submitted the way the case was now brought was inconsistent with the plaintiff’s draft Statement of Claim and also with the initial claim form signed by him on 27 April 2007 in which he set out he first noticed his condition on 2 October 2006 following which he ceased work on 4 April 2007.
320 Further, the first affidavit sworn by the plaintiff referred only to the fall said to have occurred in October 2006 and the lifting incident of April 2007. No reference was made to a third incident until the recent affidavit sworn by him on 17 February 2011.
321 It was submitted that although the plaintiff said had he had suffered a number of injuries whilst working for the first defendant, there was only one injury noted in the register of injuries. No claim for compensation was made during the period of employment. When a claim was received by the first defendant on 10 May 2007, the employer’s response document set out that the plaintiff was retrenched on 30 March 2007.
322 It was submitted by counsel for the defendants that it was “no wonder” in these circumstances that counsel for the plaintiff conceded that the plaintiff was a poor historian.
323 Counsel for the defendants however conceded there was a compensable injury on 10 May 2006, in the circumstances originally described by the plaintiff as having occurred in October of that year but submitted the extent of that injury and the incident and the consequences flowing from it, was very much in dispute.
324 The consensus of that medical opinion is that the plaintiff suffered an aggravation of pre existing lumbar degenerative disease in the first incident.
325 However, counsel for the defendants submitted the plaintiff had a long history of low back pain identified as multiple degenerative disc disease by the CT scan in October 1999. It was submitted that the first incident was a transient episode with the plaintiff requiring only one week off work. The plaintiff then did not seek medical assistance until 2 October 2006, working normal full time duties until that time.
326 I accept that the plaintiff has experienced more intense back pain, particularly in the form of spasm, since the first incident.
327 Although the plaintiff had only a week off work thereafter, he was prescribed medication at that time. His evidence that his request for light duties following the first incident was refused, was not challenged.
328 Whilst counsel for the defendants questioned whether the second incident was work related, the plaintiff has always maintained he suffered injury on 2 October 2006. He saw Dr Rigoni that day and the following day when he was prescribed Mobic and was sent for further investigations. Dr Rigoni noted that the plaintiff then told him he had had back pain since April. Dr Rigoni’s certificate of that day referred to “recurrence for fall in May”.
329 In terms of the third incident, the plaintiff reported to Dr Portelli an exacerbation of his back condition whilst lifting at work on 4 April 2007.
330 Whilst it was submitted by counsel for the defendants that the plaintiff actually finished work with the first defendant on 30 March 2007, I do not accept this was the case.
331 I am satisfied that the plaintiff was still employed by the first defendant on 4 April 2007 as confirmed in the Separation Certificate completed by its employee. The computerised wage records also set out the plaintiff was paid full time wages by the first defendant until the week ending 6 April (Good Friday) together with three weeks’ holiday pay and a further day’s pay.
332 I accept that the plaintiff first became aware his employment with the first defendant was terminated when he attended its office with the first medical certificate dated 10 April 2007.
333 I accept the plaintiff suffered an aggravation of his back condition throughout the course of his employment as a result of work duties which the first defendant conceded were heavy.
334 The plaintiff’s back condition was a relatively minor problem in the early days of his employment, working without the need for any medical treatment until September 2005 when he saw Dr Atkin who prescribed Panadeine Forte and Celebrex.
335 Whilst the circumstances of the overdose are somewhat unclear, I accept that one of the reasons for its occurrence was the fact he was taking Valium for pain relief due to the generally heavy nature of his work.
336 The plaintiff’s condition significantly worsened following the first incident and the third incident was “the straw that broke the camel’s back” after which the plaintiff has been unable to return to heavy unrestricted work.
337 In Kruisselbrink v Nationwide Maintenance Services Pty Ltd (2010) VSC 260 Forrest J dealt with an application to amend a statement of claim at trial to allege injury during the course of employment in circumstances where the second defendant had granted a certificate in relation to injuries suffered in a specific incident.
338 In allowing the amendment, Forrest J stated that Section 134AB of the Act is a gateway provision which must be satisfied before a claim for damages can be brought. A finding that the plaintiff has a serious injury does not finally determine the rights of the parties. The focus is on the nature and effects of the compensable injury and not upon the cause of the action the plaintiff may have.
339 If there is a compensable injury that occurred after October 1999, the consequences of which are serous, the application succeeds. Otherwise the circumstances of employment so far as they are relevant to the damages trial form no part of the consideration of the issue of serious injury.
340 Similar considerations apply in determining this application pursuant to Section 134AB.
341 In the present case, I am satisfied that the plaintiff has suffered a compensable injury during the course of his employment due to the heavy nature of his work which materially contributes to his back condition at the present time.
Pre Existing
342 The facts of this case require a consideration of the plaintiff’s back condition prior to October 2003, when he commenced work with the first defendant.
343 The Court of Appeal dealt with the question of aggravation cases in Guppy v Victorian WorkCover Authority [2010] VSCA 164 (25 June 2010).
344 In that case, the Court consisted of Maxwell P, Nettle JA and Emerton AJA.
345 The Court, at paragraph 19, referred to the decision in Petkovski v Galletti, in which the Appeal Division of the Court held:
“… in relation to broadly equivalent provisions of the Transport Accident Act 1986 (Vic), that where there was an aggravation of a pre-existing condition or injury, the applicant was required to establish what injury was caused by the accident. An analysis had to be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment had to involve serious long term impairment of body function.”
346 In the footnote to that reference, paragraphs 443-4 in Petkovski of Teague and Southwell JJ, was referred to. It was noted that:
“Their Honours observed that the Transport Accident Act 1986 (Vic) did not affect the long-established principle that a person injured could be compensated for, but only for, such disabilities as were proved to have resulted from the relevant accident. There appeared to be some question in the mind of the learned judge below as to whether Grech v Orica Australia Pty Ltd (2006) 14 VR 602 rather than Petkovski was the authority that he should follow.”
347 While it was clearly appropriate for the learned trial judge to follow Petkovski, the Court of Appeal held there was no inconsistency between Petkovski and
Grech.
348 In the recent case of Fiipowicz v Arnold Ribbon Co Australia Ltd (2011) VCC, His Honour Judge Misso considered himself to be bound by the reasoning of Ashley J in Grech in considering an aggravation case pursuant to the Accident Compensation Act.
349 In Grech at para 58, Ashley J held that if the present consequences to a plaintiff have been materially contributed to by the compensable injury and will continue to do so permanently, then that is sufficient as a matter of law.
350 Counsel for the defendants submitted that the plaintiff had a significant back problem prior to commencing employment with the first defendant.
351 It was submitted that during the course of his employment with the first defendant, the plaintiff had suffered nothing other than transient consequences of various incidents. He had irreversible degenerative disc disease where it would not be surprising if there were relapses when he was aged in his thirties. The plaintiff had an underlying constitutional condition that of its own very nature had exacerbations.
352 Reliance was placed on the 1999 radiology which demonstrated multiple degenerative disc disease. Further Dr Portelli considered the plaintiff was totally incapacitated as of September 1999.
353 Clearly, the plaintiff had problems with his back during the 1990s, having suffered injury in the 1994 car accident, and some aggravation in the 1998 car accident as noted by Dr Portelli but not mentioned in the Bethesda summary of the plaintiff’s injuries and treatment at that time.
354 The plaintiff conceded he had ongoing back problems during that period for which he received treatment from Dr Lim and Dr Widjaja. He reported back problems to medico legal examiners Mr Flaim, Mr Flanc, Dr Patkar in late 1990 and early 2000. However, Dr Kostos did not think the plaintiff had a significant back problem when he examined the plaintiff in May 2000.
355 In cross examination Dr Portelli did not concede the plaintiff’s back was a serious problem at that time. In the years leading up to commencing work with the first defendant, Dr Portelli confirmed there was no complaint of back pain. Tramal that was prescribed was in relation to the plaintiff’s knee condition as was the referral to Mr Wilde in 2003.
356 Significantly, until suffering injury, the plaintiff had the capacity to work full- time in heavy, unrestricted work handling carcasses and working on the rail in the meat trucks. Although he had a heroin habit whilst working for the first defendant the plaintiff was able to work full time without the need to take any time off work.
357 Following the first incident, the plaintiff had difficulty performing these heavy work tasks and since April 2007 he has not had the capacity to do so, as the defendants have conceded.
358 All medical practitioners consider the plaintiff is permanently unfit to do his pre injury duties as a meat worker, although Mr Hooper thought such a limitation was due to constitutional, not work related factors.
359 Whilst Dr Portelli thought the plaintiff was totally incapacitated at end of 1999 and there was degeneration shown on MRI at that time, the plaintiff was able to do heavy work with the first defendant four years later.
360 Findings on MRI have changed from the L5 nerve root exiting normally in 1999 to there being significant impingement at that level on the left side particularly and to a lesser extent on the right – consistent with the plaintiff’s evidence that his low back pain mainly goes down his left leg.
361 Mr Schofield’s view, ultimately based on the full account of the plaintiff’s history as set out in his third affidavit, was not challenged nor was the evidence of Dr Portelli. Mr Hooper having been forwarded the more recent MRI made no comment as to the changes shown since the 1999 MRI.
362 I am satisfied that due to the aggravation of his back condition suffered during the course of his employment with the first defendant, the plaintiff can no longer do heavy unrestricted work, particularly as a meat worker - a consequence which I consider to be serious in an uneducated, relatively unskilled man who has only a history of manual work and has a history of drug use and family problems.
363 This consequence when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
364 In the circumstances of the present case I am satisfied that the compensable injury materially contributes to this consequence and also that the aggravation of the plaintiff’s back condition whilst working for the first defendant meets the test of seriousness in this regard.
365 Further, I accept that since the first incident, and more significantly after the third incident the plaintiff has experienced pain and restriction of movement in his back with more significant spasms than before he started working with the first defendant. The plaintiff has required Panadeine Forte and Voltaren on an ongoing basis since ceasing work with the first defendant.
366 I accept there is some restriction in the plaintiff’s daily activities with difficulty with prolonged sitting and standing. As Dr Portelli explained the radiological findings are consistent with the plaintiff’s complaints in this regard.
367 I accept that the plaintiff’s ability to do mechanical work on cars, which was his passion and early career path, has been affected by his back condition but it is unclear whether he ceased operating his business for that reason, having last worked in March 2007 one month before the third incident at a time he was still working full time with the first defendant.
368 Further the plaintiff commenced this business in March 2006 and deposed as to the earnings in the first month. His evidence as to why he ceased trading was somewhat unclear, relating to both an inability to pay lease payments and also because of his injury.
369 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury and leave is granted to bring proceedings for damages for pain and suffering in relation to his back condition.
Loss of Earning Capacity
370 Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a)
at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
371 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. 372 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
373 “Without injury” earnings consist of the 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.
374 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
375 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
376 I am therefore required to determine a “without injury” earnings figure.
377 Both parties agreed that the “without injury” earnings figure is $640.00, sixty per cent of which is $384.00.
378 The plaintiff’s earnings from personal exertion as at the date of hearing are $275 per week, working fifteen hours per week at fifteen dollars per hour.
379 Counsel for the plaintiff submitted that the plaintiff’s present job was not a “real” job as the plaintiff was not doing a full range of meat worker duties for which he would be paid twenty dollars per hours if he had the capacity.
380 It was submitted the plaintiff “had had a pretty good crack at working at every turn and he is not lying back waiting for his claim to settle.” The plaintiff had tried in various jobs but was unable to continue when requests were made of him to work further hours or engage in heavier duties.
381 Counsel for the plaintiff submitted, by virtue of his injuries the plaintiff is unable on a permanent basis to earn in excess of the base figure of $384.
382 Counsel for the defendants disputed this was the case relying on the plaintiff’s work history with A Porchetta for over two years and more recently with Vince Meats.
383 Working thirty five hours per week at A Porchetta over a thirty week period the plaintiff earned $604 per week and working full time with Vince over five months the plaintiff earned $584 per week, earning clearly in excess of the base amount.
384 Further, as at December 2008 and again in February 2009, Dr Portelli was certifying the plaintiff fit to work thirty eight hours per week on light duties following advice from the plaintiff that he was coping with his duties.
385 The plaintiff confirmed in re examination that the usual working week for labourers at A Porchetta at that time was thirty five hours.
386 In cross examination, Dr Portelli could not point to any physiological change from when he certified the plaintiff fit to work thirty eight hours per week in early 2009 to the present time.
387 On the 29 February 2009 visit, the plaintiff complained of a right shoulder injury at work and did not mention any problem with his back. One week later the plaintiff mentioned some settlement of right shoulder pain but did not mention any back problem. The next visit was not until November 2009 when the plaintiff mentioned he had recurrent back pain and was unable to work “at the moment”.
388 There were no attendances at Dr Portelli’s clinic or any other doctor during the time the plaintiff worked for Vince Meats.
389 Whilst I accept the plaintiff was generally a truthful witness and that he has tried to go back to work at various times, I do not accept that whilst working for A Porchetta and Vince he was a stoic working long hours under difficulty as submitted by his counsel.
390 Further, I do not accept the plaintiff stopped working in these jobs because of increasing difficulties with his back when there is no medical or lay evidence suggesting deterioration in his condition or any problems experienced by him with these duties.
391 To the contrary, the plaintiff was advising Dr Portelli of his ability to cope with working at La Porchetta and made no mention of difficulties on examination in February and March 2009, nor did he tell the doctor that he left that employ because Angelo was putting pressure on him to work more hours.
392 I accept that the plaintiff had the capacity to work not less than thirty five hours at that time and there has been no deterioration in this condition since that time to alter this situation.
393 Further, the level of activity shown on the November 2008 video indicated the plaintiff was able to carry out a range of light duty tasks with no apparent restriction. Also, there was no lay evidence supporting the plaintiff’s evidence of any difficulty performing either the work at A Porchetta or at Vince Meats.
394 I accept the submission of counsel for the defendants that the plaintiff is not presently working to his full capacity when working fifteen hours per week as part of the Newstart scheme. These are the maximum hours he is permitted to work and gives him an entitlement to further Government benefits bringing his income into the $400 per week range.
395 Taking into account all the evidence, I am not satisfied that on a permanent basis the plaintiff has a loss of earning capacity of forty per cent. Accordingly his application in relation thereto is dismissed.
396 Leave is granted to bring proceedings for damages for pain and suffering only.
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