Melenhorst, Stephen v Alta Energy Pty Ltd
[2009] VCC 1469
•7 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03531
| STEPHEN MELENHORST | Plaintiff |
| v | |
| ALTA ENERGY PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 24 and 25 August 2009 |
| DATE OF JUDGMENT: | 7 September 2009 |
| CASE MAY BE CITED AS: | Melenhorst, Stephen v Alta Energy Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1469 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – loss of earning capacity only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC with | Simon Parsons & Co. |
| Mr J Goldberg | ||
| For the Defendant | Mr P D Elliott QC with | Minter Ellison |
| Mr J Batten | ||
| 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 defendant on 16 November 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only. Counsel for the defendant conceded pain and suffering at the commencement of the hearing.
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 case is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. The plaintiff’s father, Bernard Melenhorst, swore affidavits on 7 and 24 August 2009. He was required to attend 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.
The Plaintiff’s Evidence
6 The plaintiff is aged forty-five having been born on 14 March 1964. He completed Year 11 in Traralgon. After leaving school, the plaintiff commenced an apprenticeship as an electrical mechanic with the SEC undergoing his training from 1982 until 1989.
7 Prior to commencing work with the defendant, the plaintiff’s entire working life had been in the power industry. He worked as a Grade 1, A Grade electrical mechanic at numerous power stations, dismantling, repairing and maintaining a variety of large mechanical and electrical equipment.
8 At the SEC the plaintiff worked on a gang of up to fifteen to twenty tradesmen, including trade assistants and apprentices. During that time the plaintiff did not have an apprentice assigned to him nor did he supervise or train apprentices. The apprentices had on-the-job training.
9 The plaintiff accepted a voluntary departure package from the SEC in 1989 and then worked with a large number of construction companies involved in the power industry.
10 The plaintiff has never had any clerical experience and the planning and coordination work he did whilst employed at Loy Yang was onsite and hands on and was never an office job.
11 The plaintiff commenced employment with the defendant on 27 October 2002 as an appliance technician. His job was to repair the electrical mechanisms of domestic and commercial whitegoods. The work was physically demanding.
12 The plaintiff deposed that prior to commencement of employment with the defendant, he enjoyed good health and was able to perform all aspects of his job without restriction.
13 In cross examination the plaintiff agreed he started to have problems with his back twenty five years ago doing judo. He had pain in the middle of his back and later found out he had broken his left collar bone.
14 The plaintiff confirmed various notes in his general practitioner’s file where complaints of lower back pain and anxiety were recorded from April 2000 and the plaintiff was prescribed medication in relation to these conditions until the said date.
15 The plaintiff knew he had back pain prior to the incident but he could not recall in what part of his back. He confirmed that just prior to the incident he had tests for hepatitis and he was also being prescribed Xanax.
16 Between 28 October 2002 and 30 June 2003, the plaintiff had gross earnings of $24,527. In the financial year 2003-2004, his gross earnings were $40,365.
17 On the said the date the plaintiff was required to attend the Pizza Hut premises at Traralgon to work on a commercial dishwasher. After repairing the dishwasher and when repositioning, lifting, manoeuvring and manhandling it, he experienced sudden and severe pain in his lower back (“the incident”).
18 Despite the pain, persisting ache and discomfort, the plaintiff attempted to continue the job. He then returned to the defendant’s premises and reported the injury but he was unable to further attend to his work duties.
19 The following day the plaintiff sought treatment from Dr Mangura at the Hillcrest Family Medicine Clinic in Traralgon (“the Clinic”). The plaintiff was advised to rest and painkillers were prescribed. An x-ray of the lumbar spine was arranged and the plaintiff was referred for physiotherapy. The plaintiff was certified unfit for work.
20 Having seen him once in late November 2004, the plaintiff, since February 2005, has been treated by Dr Rooney in Traralgon. Dr Rooney organised a CT scan and referred the plaintiff to Mr Xenos, neurosurgeon, whom he first saw on 9 March 2005.
21 Mr Xenos arranged for an MRI scan which was performed on 9 April 2005, following which conservative treatment was recommended. Mr Xenos told the plaintiff that he would consider further treatment with epidural or nerve root injections.
22 The plaintiff has continued to experience significant back symptoms since the incident. He has had constant pain in the lower back on the left side below the belt line which can fluctuate according to his activities. Bending, twisting, lifting and carrying moderate weights are difficult and can cause significant worsening of his pain. Other times the plaintiff’s pain can get worse for no reason he can point to.
23 The plaintiff’s level of pain can be made worse by sudden events such as sneezing, taking an awkward or unguarded step or sitting, standing or remaining in the one position for prolonged periods. If he goes to the pictures he has to get up half way through the film and walk around.
24 Some times his symptoms of pain and loss of movement can be quite severe and other times not so bad. Because his pain level is very unpredictable, the plaintiff is unable to be confident he will get through the day without problems.
25 The plaintiff’s medication blunts the severity of his pain but does not take it away completely. Medication makes it easier for him to get through activities and undertake simple tasks and activities.
26 In examination in chief, the plaintiff said that his back had got a little bit worse since April this year because of cold weather. He confirmed that he was nervous about having surgery because of the experience of one of his friends who had ended up in a wheel chair.
27 The plaintiff continues under the care of Dr Rooney whom he sees monthly. Dr Rooney prescribes MS Contin, two tablets of thirty milligrams every day. The plaintiff takes one Endep tablet of fifty milligrams and takes an anti- spasmodic similar to Valium called Antenex. Over the last month the plaintiff would have taken maybe ten to twenty of those tablets. He also takes a sleeping tablet called Alodorm every night. He has very bad problems sleeping. Because he is in pain, he cannot get to sleep and cannot get comfortable.
28 The plaintiff also has monthly treatment from an occupational therapist, Caroline Pyle, in Traralgon. Her treatment focuses on posture, body movements and body mechanics to strengthen and improve core muscle groups. She has taught him about ways of doing things that are a little bit more gentle on his back and she has “actually been quite and angel for him”.
29 In addition to the problems with his back, the plaintiff’s injury has had a marked effect on his emotional health. He was referred by Dr Rooney to Mr Hodgson, psychologist in Traralgon, whom he continues to see every four to six weeks.
30 The plaintiff last saw Mr Hodgson in April 2009 and has another appointment with him in September 2009.
31 The plaintiff believes his demeanour and attitudes have changed markedly as a consequence of his back injury and the resultant limitations. He has lost his sense of self worth, confidence and self esteem. His ability to work and enjoy a good income and be active socially and recreationally has been markedly affected. He has become morose, withdrawn and has used alcohol excessively over the last two or three years.
32 Prior to the incident, the plaintiff enjoyed a long term committed relationship. He was engaged and planned to have a family. The injury to his back placed a great strain on the relationship and it ended in 2007, causing the plaintiff much distress and upset.
33 The plaintiff tries to remain as active as possible, finding walking everyday helps his back. He walks up to two kilometres a day three times a week but not that much in the colder weather. Swimming also helps his back but he is not a strong, confident swimmer.
34 Mr Xenos gave the plaintiff advice about moving around a bit and not doing heavy lifting and advised him to do pain management but he had not done it. The plaintiff agreed he had followed Mr Xenos’ advice and lost weight but he had put it back on again.
35 The plaintiff does housework and gardening but these activities can aggravate his pain. He also experiences left leg pain and he sometimes has a similar pain in his right leg going down to his foot.
36 The plaintiff’s back injury has imposed limitations affecting everyday activity. For example, the plaintiff can drive a car but after one to two hours he needs to stop and move around to ease his symptoms.
37 In cross examination, the plaintiff agreed that he could go and sit on a stool at the Crown Hotel where his mixes with friends. He confirmed that the hotel was part of his social life
38 The plaintiff confirmed that as of October 2005 when he was interviewed by a vocational assessor, it took him longer to do domestic tasks such as lawn mowing and establishing a garden. He denied he told a vocational assessor that he had to get tradesmen to do jobs he had previously done himself.
39 The plaintiff was doing mowing and gardening at that time, even though his general practitioner had given him a letter so he could get some support with these tasks, because he did not want “to sit around on his backside all day and watch television”.
40 The plaintiff agreed those jobs now take him much longer to do. He used to be able to do his lawns in about two to two and half hours, now it could take him a whole week. He confirmed he still had problems with domestic tasks such as vacuuming.
41 The plaintiff has tried some light jobs around the house to test out his back and also because he has frequently been frustrated and bored and unable to get back to work.
42 The plaintiff recently deposed that, with the help of his father and friends, he had done some repair work on his house. These tasks, replacing weatherboards and three windows, were done over a number of years. He had breaks in the work and paced himself. In cross examination the plaintiff agreed that he had not mentioned the renovation work in his first affidavit. He was sure it had been mentioned before but he did not know why it was not delved into further.
43 In cross examination the plaintiff was asked whether he knew about the contents of his father’s affidavit. He said, basically, his father was asked about coming over to his place quite a few years ago and helping to get him motivated to do renovation work which had been ongoing since but was not finished.
44 The plaintiff confirmed the work had been going on and off for more than two years and it had come to a stop because it had been cold and “that really affected him”. Also he and his father had “had a little bit of a falling out”.
45 The plaintiff said he was really lucky that he had good friends, and his father was a great dad. His father was the one who initiated further work on his house to get the plaintiff a bit more motivated and less depressed.
46 The plaintiff denied that he had put details of the renovation work in his second affidavit because he was aware he had been filmed. He said he believed he had been observed from Day 1.
47 The plaintiff could not return to work as an appliance technician with the defendant as he could not do the physical work. The installation, maintenance and repair of a range of commercial and domestic white goods is work which is physically demanding and requires a lot of mechanical work of which the plaintiff is no longer physically capable.
48 The plaintiff said that most of his work had been done in power stations and he had done very little work on domestic or commercial installations. He said he did not know the theory of those jobs very well.
49 The plaintiff believed he would require significant occupational and vocational assistance to find such work.
50 Since the incident the plaintiff applied for a job with Morwell TAFE to train electrical mechanics and technicians. There was another component of that job involving fitting of electronics for which he needed to do a course.
51 The plaintiff handed in a resume for this job roughly a year ago. He “sort of wanted to try and keep on doing something and contribute”. If the job had been offered to him he would have taken it. He told the potential employer of his back condition. He thought the TAFE was really desperate for a trainer; however he did not get the job.
52 The plaintiff confirmed he told Ms Butterworth of Catalyst Counselling in November 2006 that he in no way saw himself finished in the workforce and he was really enthusiastic to try and do something, a situation that was still the case.
53 The plaintiff agreed he told Ms Butterworth that he was optimistic he could manage to work as a trade teacher given his experience supervising apprentices in the past, especially at the SEC.
54 In terms of other job options, the plaintiff did not think he would last very long doing sales work because he would find it incredibly boring, as he would working as a meter reader. He is looking for something that is interesting but is worthwhile, like a career where he could help people out and he could use his intelligence.
55 The plaintiff confirmed he thought the teaching job would be theory and also practical demonstration of dismantling equipment and he would not be able to do that all day, every day. He could not work as a shop assistant approaching customers and showing them products. He could not guarantee he could turn up every day from one to the next. He certainly would not be able to work as a meter reader day in, day out.
56 The plaintiff is yet to complete a Certificate IV of Workplace Training through Morwell TAFE (“the course”). He explained that he was tempted to do the course in the hope that he would be able to impart some of his knowledge to younger people. The plaintiff hoped to be qualified to train apprentices, for example, with Gippsland Group Training. He was looking for more fieldwork which involved moving around a bit.
57 The plaintiff completed eleven of the fourteen units of the course between August and November 2007.
58 The plaintiff had difficulty attending the course and completing the subjects because of problems with sitting due to his back and also due to his emotional state. He would like to resume the course when there are enough other students interested in the course for it to be held again.
59 In cross examination the plaintiff said that “even his trainer in the course would allow him to get up and go out for a walk for twenty minutes, ten minutes and come back again”.
60 The course runs for four to six months and the sessions were all during the day from 8.30-9.00am until 4pm, one day a week, together with assignments.
61 Twenty per cent of course work could be done at home and the remainder was done in the classroom. There were no exams; it was more like demonstrations and assignments. Demonstrations, such as propagating plants, were part of the course to test his ability to teach.
62 The plaintiff agreed, to a certain extent, that the course was flexible.
63 The plaintiff gave the example of one of the units which involved identifying what was lacking in a workplace and then going in and suggesting what could be done in a safer manner.
64 Even after finishing the course, the plaintiff did not know what type of work he could do. He would also have to do an electrical fitting course before getting a job.
65 He did not know whether he could be a trainer or teacher or whether he had the attributes or skills as he had no teaching experience or qualifications.
66 The plaintiff did not believe he could work fulltime as a teacher as this job involved setting up equipment and practical demonstrations using tools and equipment. He would be required to bend, lift, stretch and crouch whilst using and demonstrating tools and equipment. Further, instructing and teaching would involve manhandling tools, equipment and machine engines, and would also involve carrying and lifting. The plaintiff believed his capacity for such work would be limited and perhaps be no more than three to four hours a day.
67 The plaintiff could not stand for a long period of time, as would be required, for example, when bent over a large electric mower showing students how to disassemble it. He confirmed the problem was being in a static position.
68 In cross examination the plaintiff agreed he could run a trade class at his own pace and demonstrate various tasks but said “he was not a builder or anything like that. As far as telling someone how to screw in a screw with a battery drill you could do that by just saying it to them.”
69 The plaintiff explained that he was going quite well with the course but he lacked computer skills and he could not do Powerpoint presentations. He had recently got a computer at home that had nearly been set up with the help of his youngest brother. He also needed to buy some parts for it but did not have the money to do so.
70 In cross examination the plaintiff said that CRS organised for him to do the TAFE course “but they were very unsure of what work he would be able to go straight into”. The plaintiff continues to see CRS fortnightly.
71 The plaintiff has been living on Social Security since his weekly payments were terminated in 2006 and he has had help from his parents and grandmother.
72 During the day the plaintiff tries to continue life as normal as possible. He helps his grandmother, aged ninety two, who lives over the road from him do all her shopping and looks after her generally. He potters around the house, does his own housework and what he does varies a lot from day to day depending on how he feels. Quite often he will have no sleep overnight.
73 The plaintiff said he hoped to still keep moving on and participating in society after his case was finished.
Lay Evidence
74 The plaintiff’s father, Bernard Melenhorst, swore two affidavits, the first on 7 August 2009 and the second, most recently, on 24 August.
75 Mr Melenhorst deposed that the plaintiff had continued to suffer significant problems with his back since the incident and had not returned to work.
76 From the time of the incident, he had been concerned with the impact the injury has had on the plaintiff, his inactivity and his inability to work and the effects on his emotional health. He was also concerned about the plaintiff’s demeanour and attitude, and that the plaintiff had become despondent, depressed, withdrawn and snappy and was drinking, often excessively.
77 Since about 2007 he has helped the plaintiff as much as he could to make improvements to the plaintiff’s house in Kay Street, Traralgon.
78 During 2007, and again during 2008, together they carried out repair work on the house, replacing exterior planking, three/four exterior windows and replacing exterior stumps around the perimeter of the house.
79 They worked at their own pace and from time to time were helped by the plaintiff’s friends. He and the plaintiff did a variety of tasks using various tools.
80 The amount of work done by the plaintiff on any one day varied greatly and some days were easier for him than others. On some days the plaintiff was able to do very little and on others he was freer and able to cope better with the job.
81 There were periods when the plaintiff was able to perform manual tasks in a freer less restricted way and other times when he was significantly restricted even doing simple tasks, for example, using a hand shovel to dig out a small ground hole. At times he would take over from the plaintiff and complete whatever task the plaintiff was doing.
82 Most activities took the plaintiff a lot longer than expected, and he was generally restricted and also took frequent breaks.
83 In his most recent affidavit, Mr Melenhorst deposed that he estimated he had done about ninety per cent of the work on the plaintiff’s house. At times he attempted to engage the plaintiff and give him something meaningful to do because he was concerned about the plaintiff’s general state.
84 Approximately fifty per cent of the time that he worked with the plaintiff, the plaintiff was incapable of performing any real physical tasks as he was complaining of pain. During those times he attempted to get the plaintiff to do something, even if it involved him sitting and doing things for short periods.
85 About fifty per cent of the time the plaintiff would be capable of doing some work. He protected the plaintiff from heavier tasks which he undertook himself. The plaintiff was able to do some work for periods of up to two hours before lunch and occasionally capable of doing a further stint after lunch. He was never able to work for more than four hours.
86 He was generally at the plaintiff’s house between 9am and 4.30pm. The overall picture was that he did not know on any particular day what level of work the plaintiff could do until he arrived at the house.
87 The plaintiff’s capacity to do any work of a light physical nature was erratic and depended on his state of health at the time. Fifty per cent of the time, and this could not be predicted, the plaintiff would be capable of very little by way of physical activity.
88 In examination in chief, Mr Melenhorst said that he was asked by the plaintiff to attend a meeting with his solicitors at which time the first affidavit was completed in the plaintiff’s presence. The plaintiff was not present when the second affidavit was sworn. He explained he swore the second affidavit for clarification.
89 It never came into his mind when they were working at the house that there would be people watching them and he would probably have objected if it had been happening.
90 He explained the falling out with the plaintiff. He had spent eight months last year on the plaintiff’s house and had seen his own house deteriorate. The plaintiff had reached the stage where he was physically exhausted and so was he. The plaintiff had said to him that him being there continuously had stopped his friends from calling over. This was “the main context of the disagreement”. However, he and the plaintiff were speaking to each other again within a week.
91 He felt he was doing the plaintiff a favour, each day at his expense putting in money, and he felt the plaintiff was not fully appreciative of him.
92 He had ascertained the plaintiff’s capacity and he was trying to push him a little bit to see how much he could do. He noted the plaintiff’s injury was of such a nature that it was not visible and at times he pushed the plaintiff just to make sure the plaintiff was putting in as much effort as he felt he should.
93 The amount of work was larger than he initially thought, which was just going to be ripping off old boards, putting in insulation and replacing new boards.
94 It became apparent that the stumps needed to be done and he did ninety per cent of that job. He and the plaintiff did the boards together. It was a light job but it required two people because of the length of the boards.
95 The insulation material was very light and was put in first under the boards. They started the work at the bottom and then worked up to the top. There was scaffolding on the side of the house, which was easily erected, but not needed on the front where they used extension ladders.
96 The end of the roof rafters had rotted away and had to be replaced. Both of them screwed them in. The plaintiff was capable of this task because he was in an upright position using electric drills. He denied there was much vibration when drilling if handled properly.
97 He did all the work on the front verandah except sawing the rafters and the plaintiff helped him. The plaintiff only helped him with a couple of stumps, softening the soil and digging it out until they got to the required depth for two stumps.
98 The plaintiff installed a power point on the front verandah and he replaced some of the wiring for internal use.
99 Mr Melenhorst was actually financing the work when he discovered his own superannuation scheme had diminished to a very large extent and he was worried about his future.
100 The back verandah and the back decking are not finished. The plaintiff did not assist with mixing concrete.
101 When he would get there at 9am, not infrequently the plaintiff would just be getting out of bed because he had not slept during the night.
102 He stated that he encouraged the plaintiff to do the course. He was concerned about the plaintiff’s inability to sit for more than two hours doing his study. He confirmed that if the plaintiff could sit and stand, he was capable of a range of physical activities but not on an ongoing basis.
103 Mr Melenhorst confirmed that he did ninety per cent of the work which did not mean the plaintiff did ten per cent. Ninety per cent of the work was work which did not involve the plaintiff. He was on the site for five months during 2007 and 2008 and putting in the stumps constituted many more hours than putting up a few planks on the house.
104 He and the plaintiff did 50/50 of the planking work and he thought they worked well together as a team. If the plaintiff was not coping well, he would tell him to go and make brackets or do some other work in the shed, working at a bench using an oxy torch or pre-painting beams.
105 In re-examination he confirmed the plaintiff had completed installing the second part of the decking, but had not done much else since they had a falling out.
The Plaintiff’s Medical Evidence
106 The plaintiff attended Dr Mangura on 17 November 2004 complaining of lower back pain and stiffness. The plaintiff told him he injured himself in the incident the day before.
107 On examination there was tenderness at L1-L5 and limited range of active movement. The plaintiff denied any previous back problem. Dr Mangura advised the plaintiff to rest, prescribed analgesia and requested a lumbar x- ray.
108 The plaintiff re-attended on 22 November 2004 complaining of pain radiating to his left leg on the lateral aspect. The x-ray was normal.
109 Dr Mangura referred the plaintiff to La Trobe Valley Physiotherapy and changed his analgesics.
110 On 1 December 2004, the plaintiff returned, telling Dr Mangura that his lower back pain had improved but he needed a stronger analgesic. The plaintiff re- attended on 13 December 2004 and 12 January 2005.
111 The plaintiff also saw Dr Rooney on 22 November 2004. The plaintiff was next seen by him on 8 February 2005 for a second opinion. A CT scan was organised which suggested a degree of disc bulging and at that time an appointment had already been made for the plaintiff to see Mr Xenos.
112 Dr Rooney last reported on 14 May 2006. He then thought the plaintiff was not fit for heavy manual work but he would be fit for work where there was no heavy lifting or repetitive bending.
113 Dr Rooney’s clinical notes, postdating the incident until 23 July 2009, were tendered. The plaintiff has continued to attend him regularly and Dr Rooney has prescribed MS Contin for low back pain with increased dosages when the pain has been severe.
114 Mr Xenos reported on a number of occasions, the last being 10 May 2005. At that stage he thought the plaintiff only had minor niggles of pain down the left leg but his background back pain persisted.
115 Mr Xenos wrote to Dr Rooney advising there was no surgical solution and he strongly advised referring the plaintiff to a multidisciplinary back strengthening program.
116 Mr Xenos noted the MRI scan demonstrated only minor degenerative changes and had noted a grade 1 slip of L5-S1. There was no huge disc prolapse, no focal central canal stenosis and no reason for surgery.
117 Mr Xenos noted he had a “stern talking to the plaintiff pretty much emphasising he would need to lose weight and overall any return to work program would need significantly modified duties”. Prolonged standing or sitting would not be recommended, nor would repetitive bending or lifting of greater than five to ten kilograms.
118 Dr James Rowe, specialist occupational physician, examined the plaintiff on 1 June 2005. In his view, even in spite of the MRI scan, more likely than not the plaintiff had a disc protrusion at L5-S1 related to his employment and the incident.
119 Dr Rowe considered the plaintiff had a capacity for employment with, say, a ten kilogram lifting limit and, with help, the plaintiff may be able to perform repairs to appliances but he could not lift or manoeuvre them.
120 Dr Rowe thought it might be another three to four months before maximum medical improvement had taken place. He thought the plaintiff’s prognosis was guarded at that stage.
121 Mr Huygens, specialist surgeon, examined the plaintiff on behalf of CGU in July 2006 for the purposes of an AMA assessment. Mr Huygens considered the plaintiff had made an incomplete recovery and he regarded his prognosis as poor.
122 Mr Huygens thought it would be best if the plaintiff could be retrained so he could be gainfully employed, one option being he could teach in his trade as an electrician. He noted the plaintiff certainly appeared to be well motivated, open and honest and that he could be retrained, if not as a teacher then in some other profession that would require him to lift no more than ten kilograms.
123 The plaintiff was examined on two occasions by Mr Schofield, orthopaedic surgeon, initially on 5 December 2006 and most recently on 13 March 2009.
124 On examination there was a flattening of the normal lumbar lordosis, but on palpation a small step could be felt, which was tender, in the lower lumbar region. There was restriction of spinal movement. Straight leg raising was restricted to forty degrees on the left and sixty degrees on the right. There was noted to be slight weakness of aversion and dorsiflexion of the left foot. He noted, in particular, the important clinical sign of crawling up the plaintiff’s legs to extend the spine was indicative of instability.
125 Mr Schofield had available the MRI scan of April 2005. In Mr Schofield’s opinion, the plaintiff’s work related condition had not resolved. The previous measurement of forward slip at the lumbosacral level was two millimetres and the current measurement five, indicating a gradual worsening of the instability.
126 Mr Schofield agreed on clinical grounds with Mr Davie’s comments.
127 Mr Schofield considered the twisting injury in the incident to the spine, which probably did have spondylosis prior to the injury, caused aggravation of the pre-existing condition causing instability in the forward slip. In addition, the hypertrophic changes at the ends of the defects were now causing back pain and neurological deficit.
128 In Mr Schofield’s view, it was likely surgery was required, however he considered an up to date MRI scan may be helpful and was indicated.
129 Mr Schofield thought the impairment of the back was organically based and permanent. It would limit the plaintiff’s capacity to earn from his usual occupation and from other occupations to which he was suited. In his view, the plaintiff did not have any capacity to work fulltime in suitable employment and he had significant limitation of function in social and domestic activities.
130 Dr Sillcock, consultant occupational physician, examined the plaintiff on 20 April 2009.
131 She noted on examination there was no scoliosis and the plaintiff had a normal lumbar lordosis. He had slight tenderness over his left sacroiliac joint. He had a normal range of movement, apart from reduced left lateral flexion, and he also complained of pain on the left lateral flexion and extension. There were normal reflexes and muscle power. The plaintiff had reduced sensation to pinprick over his left big and second toes which represented part of the L5 nerve root distribution.
132 In Dr Sillcock’s view, the plaintiff was suffering from an aggravation of pre- existing spondylolisthesis. There were no convincing signs of lumbar radiculopathy, although she considered the reduced sensation would suggest possible L5 nerve root irritation.
133 She thought the plaintiff had a residual work capacity. She did not believe he had the capacity to work as an A Grade electrical mechanic or as an appliance technician on either a fulltime or a part time basis.
134 She thought that the plaintiff could undertake employment that did not require any heavy lifting and which had limited bending. Such employment would need to be sedentary or semi-sedentary in nature with the ability for the plaintiff to move around as required. She thought he could work part time.
135 Dr Sillcock believed the plaintiff could work as a trade instructor/trade teacher but she did not believe he could work as a retail sales assistant as that job often required prolonged standing and may also require heavy lifting.
136 She understood Certificate IV enabled the plaintiff to teach at TAFE level, teaching apprentices in the appropriate TAFE or trade teaching institution. She thought the plaintiff could manage this work part time and could not do more than fifteen hours a week. She noted there was some standing required and on occasions the plaintiff may have to demonstrate tasks to apprentices.
137 The plaintiff was referred to Mr Hodgson, psychologist, who has been providing ongoing counselling since 31 January 2007.
138 In his most recent report dated 2 April 2009, he noted he had continued to encourage the plaintiff in undertaking further training through TAFE to do the certificate. In December 2008, the plaintiff reported to him he had finished the course and had one component still to complete.
139 Mr Hodgson considered the plaintiff had a very strong desire to make a contribution to society in a way he felt meaningful and he had worked towards setting goals in relation to workplace training.
140 Dr Lester Walton, psychiatrist, examined the plaintiff on 8 May 2008.
141 From a psychiatric perspective, Dr Walton thought the plaintiff was suffering from what was becoming an increasingly Chronic Adjustment Disorder with anxiety and depression. That condition was characterised by anxiety, lowered mood, irritability to a point of physical aggression occasionally, insomnia with nightmares, instability of appetite and weight, poor concentration and lowered libido. He noted to direct observation the plaintiff appeared depressed.
142 Dr Walton noted the plaintiff was clinging to the notion he may be able to take up alternative work where he was less reliant upon his physical skills but where he could draw upon his knowledge to assist in training of apprentices. Dr Walton commented, however, the plaintiff seemed to have been voicing those notions for some years but the situation had not progressed and it was not at all improbable that the plaintiff’s mood disturbance had been relevant in that regard.
143 On psychiatric grounds alone he considered the plaintiff would be capable of sustained fulltime suitable employment, presuming he was physically fit to do so.
Investigations
144 An MRI scan of the lumbar spine was carried out on 9 April 2005. It revealed minor lumbar spine degenerative changes and a Grade 1 anterolisthesis of L5 on S1. There was no evidence of neural compression.
145 A CT scan of the lumbar spine was carried out on 10 February 2005. It showed no focal disc protrusion or nerve root compression within the lumbar spine. In particular, there was no apparent spondylolisthesis or spondylosis.
Vocational Evidence
146 The plaintiff was first assessed by Helen Butterworth, vocational psychologist at Catalyst Counselling, on 20 November 2006 and a supplementary report was provided in April 2009.
147 In her view, when the plaintiff completed the course he would be certainly qualified to work in the field, at best on a part time basis. She noted, however, militating against this, that the plaintiff may not be seen as a viable employee because of the level of painkilling medication he takes and his physical limitations to carry out an instructing role. She noted, taking into account those factors, together with the fact the only location for the course was in Bairnsdale, it seemed remote that the plaintiff would be able to travel there on a regular basis and manage to work in a durable fashion.
148 Flexi Personnel provided a report dated 28 April 2009 setting out that if the plaintiff were to work as a trade teacher at TAFE, he would be paid $20.60 per hour. On the basis of a thirty eight hour week he had the potential to earn $782.80 per week.
The Defendant’s Medical Evidence
149 Mr Weaver, orthopaedic surgeon, saw the plaintiff on 8 August 2006.
150 In his view, the plaintiff clearly presented with clinical radiological and MRI evidence that he was suffering from some degree of genuine lumbar intervertebral disc pathology, something which seemed to affect multiple levels.
151 He thought it could be argued at the very least that the incident was responsible for drawing the plaintiff’s attention for the first time to a mild multiple level disc problem which might have been present for some time previously.
152 Mr Weaver noted the plaintiff was keen to make the observation he was incapable of returning to pre-injury work and Mr Weaver noted that in terms of manual handling, those complaints seemed appropriate. He considered, however, the plaintiff was equally capable of being retrained for alternative employment of some kind.
153 Mr Davie, orthopaedic surgeon, examined the plaintiff on 28 January 2009.
154 Examination revealed a scoliosis in the lumbar spine convex to the right. There was restriction of lumbar movement and there was tenderness in the left lumbosacral area to palpation. Straight leg raising was to seventy degrees on the right and sixty degrees on the left, and reflexes were equal and active. There was decreased sensation on the outer side of the left foot and weakness and dorsiflexion of the toes of the left foot and calf.
155 Having seen the April 2005 MRI scan, Mr Davie thought the plaintiff had sustained a probable L4-5 disc prolapse. He thought the plaintiff’s prognosis was somewhat guarded and he would be inclined to think the plaintiff required surgical intervention in the future. He thought immediate importance should be placed on the plaintiff being retrained as well as performing lighter sedentary work duties.
156 In Mr Davie’s view the injury had affected the plaintiff’s employment capacity and he did not think he would ever be able to return to work as an electrician.
157 Mr Davie considered the plaintiff to be permanently incapacitated for heavy manual work involving bending, lifting and twisting activities. However, he thought that with appropriate training through TAFE, the plaintiff could be employed as a trade inspector or he could carry out retail sales, but noted the plaintiff was not very interested in that. Mr Davie thought the best prospect would be in a trade school teaching electrical tasks.
158 Mr Davie considered there would be a permanent disability in the lumbar spine and, if there were any relapses, the plaintiff should be referred for consideration of surgery. He noted that although the scans were not very conclusive, the plaintiff had a scoliosis and neurological signs in his foot, and he thought those clinical signs were more important than any radiological finding.
159 In a supplementary report Mr Davie set out that he believed the plaintiff was capable of working as a parking inspector on a full time basis, an electrical engineering technician, probably on a part time basis, or a meter reader on a full time basis. He considered the plaintiff could work as a sales assistant but would have difficulty stacking and displaying goods and, on that basis, it was preferable if he could work part time.
Vocational Assessment
160 Recovre provided a number of reports and assessments from August 2005 to July 2006. The plaintiff was interviewed at various times. He indicated that he would prefer not to work as a store worker for his trade as that would be boring. Suitable employment options were seen to be as a vocational teacher, an accessories fitter and a boilermaker or welder.
161 CoWork provided a labour market analysis report on 30 June 2009 and it contacted Gippsland TAFE to obtain details of the course.
162 It was considered the plaintiff was fit to work as a parking inspector, meter reader and electrical tester and planner. In a supplementary report of 4 August 2009, following receipt of Mr Davie’s report, CoWork concluded that the job of sales assistant complied with the medical restrictions appropriate for the plaintiff’s condition.
Video Evidence
163 There was video evidence of the plaintiff’s activities on 7 and 10 November 2008 and later on 5, 6, 8 and 12 January 2009.
164 On 7 November 2008, the plaintiff was shown walking along the street, but he could not remember where he was. He then went to the Mobil service station and then home to Traralgon. He disagreed he was shown driving to an accountant’s office in Traralgon and said he did not have an accountant in Hotham Street.
165 The plaintiff said he had not realised he did it, but when he saw the film he saw himself with his hand on his back when he was walking around. The plaintiff said he was not in the slightest aware anyone was filming him apparently going to the health service.
166 The plaintiff was shown with his father doing renovation work on his house at 179 Kay Street, Traralgon, from about I.00 pm on November 2008.
167 The plaintiff agreed he went up a ladder and was using a battery drill. He was holding the drill above his head for periods of time and he was putting in screws.
168 The plaintiff and his father were shown putting a board across the front of the house and before that, at the very start of the video, the plaintiff was replacing two screws on a light at the front of the house.
169 He was then shown putting up a board underneath the guttering on the front of the house. He had his father put a similar board around the whole house.
170 The other renovations undertaken involved taking off old weatherboards and replacing them with Hardiplank, and they also put insulation in the walls.
171 There was an old veranda and his father did most of the work putting up a new veranda. He had a bit of trouble working above his head, whereas the plaintiff’s shoulders and upper body were still fine and he could do that work. His father had actually hurt his shoulder working on the house.
172 His father did all the base work, like replacing a lot of the stumps around the outside of the house. The plaintiff restumped just the outer stumps where they had been exposed to the weather. The plaintiff purchased the Hardiplank and owed his father and grandmother a lot of money for the materials.
173 The plaintiff was shown working on new whiteboards on the front of the house. The job completing the boards underneath the roof was still not finished.
174 The plaintiff agreed that he could go up a ladder, drill, and hold the drill while it was rotating causing vibration. The plaintiff said the film showed him over an hour putting in about six or seven screws. The drill was used to put the screws into place to hold the boards.
175 The plaintiff agreed that he could sometimes do the renovation activity shown on video.
176 In re examination the plaintiff said that since the falling out with his father in January this year, the plaintiff had done a little bit of work himself since with some of his friends and he nailed the boards down on the back veranda. In terms of the whole of the job, he thought his father had done eighty or ninety per cent. It was hard to judge.
177 Basically, the only restumping he did was that whilst his father held the stumps in position. He screwed some screws in to keep it in place so that his father could set the stumps into concrete.
178 The plaintiff was not on the job every day during the two years and his father would not be there on Sundays. He would come around at 8.30 am and leave at 3 or 4pm.
179 Sometimes his father would come around and get him out of bed. They would start off having a cup of tea and there were some days he could not do a thing at all, much to his father’s disappointment.
180 He thought his father outworked him three to one. He agreed there were days he could hardly do anything and that was very often – two or three days a week and some days he could help for maybe an hour or two. Basically, he did not have any warning whether he was going to have a good day or not and he would only know when he woke up the next morning or had struggled all night.
181 In terms of the falling out, the plaintiff said his father was very persistent and quite a staunch man, and when the plaintiff was not able to do things, he would start getting a bit aggravated and the plaintiff would say, “Sorry, Dad, I’m in pain”.
182 The plaintiff was then shown having an argument with his father. The plaintiff then left home in the car and was not sure where he went. The plaintiff explained that he had a falling out with his father at the start of the year and it was a very bad day.
183 He agreed he had friends with whom he could socialise, but he disagreed what was shown on the film was of some sort of pattern in that some days the only person he talked to was his grandmother on the phone. He agreed he knew quite a few people around Traralgon.
Loss of Earning Capacity
184 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 – 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). 185 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. 186 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
187 “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.
188 It is to be calculated by reference to that part of the period within three years before and three after the injury as most fairly reflects the worker’s earning capacity.
189 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.
190 There was no real dispute as to the without injury earnings figure.
191 The figure was essentially agreed at $40,365 which was the gross earnings of the plaintiff in the 2003-2004 financial year. Sixty per cent of that figure is $24,219 – a weekly gross figure of $465.
192 Further, in terms of the after injury figure, it was accepted that $20.60 is currently the minimum hourly rate for a trade teacher. If the plaintiff worked fifteen hours at $20.60, he would earn $309 per week or $16,068 per year.
193 It is accepted that the plaintiff cannot work in his pre injury job as an electrician or in other particularly heavy work. This concession was to a large part the basis of consent being given to bring proceedings for pain and suffering damages in light of the medical opinion to this effect.
194 Further, I do not accept that the plaintiff could work full time in a job requiring him to stand all day, such as a meter reader, parking attendant or as a sales person - a job which may also require lifting, bending and twisting.
195 It was conceded by counsel for the plaintiff that the plaintiff has the capacity to work fifteen hours per week as a trade teacher. His capacity to work more hours in this position is in issue.
196 The plaintiff must establish that on a permanent basis he would not be able to earn in excess of $465 per week.
197 Much reliance was placed by counsel for the defendant upon the activities the plaintiff was shown performing when doing renovation work on his house on 10 November last year. The plaintiff was engaged in a variety of tasks, involving standing working on a ladder and bending to drill holes.
198 It was submitted this was a picture that supported the occupational therapists and doctors who thought the plaintiff could work fulltime and, accordingly, meant that he could not establish the requisite loss.
199 However, this film was not of great duration and did not show the plaintiff doing any particularly heavy lifting or prolonged bending. I accept that the plaintiff can do these types of tasks, but the issue is for how long and how regularly and in what condition.
200 The plaintiff received strong support for his claim from his father. I found Mr Mendelhorst to be a cogent, reliable and credible witness who was far from trying to “shore up” the plaintiff’s case.
201 His evidence was untouched with regard to the problems the plaintiff faced in terms of his capacity for prolonged work even at home renovating. I accept his evidence that the plaintiff from day to day cannot be relied upon to present for work. Further, when he does work, the plaintiff’s capacity is significantly limited and he is unable to work for more than two hour blocks, four hours in total and even then not on a regular reliable basis.
202 I accept that the plaintiff is obviously not unintelligent and his skills could be directed towards training apprentices, particularly in light of his previous experience at the SEC in this regard. I accept that such a job would involve sitting, standing and demonstrating various tasks to students.
203 However, I accept that the plaintiff would not have the physical capacity nor could he be relied upon to attend regularly to such teaching duties for five hours or so per day.
204 In any event, when considering the plaintiff’s capacity for suitable employment, the legislature intended the worker’s loss of capacity to be determined having regard to work generally available in the employment market, rather than a position tailored to the peculiar needs of an individual worker who is incapable of performing his normal work - see Redlich JA in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230.
205 I accept that the plaintiff has had difficulty because of his back condition even completing what on the face of it is not a particularly onerous course. His father confirmed his encouragement of the plaintiff to do the course and the difficulty the plaintiff faced with the sitting involved in study.
206 I do not accept, as was submitted by counsel for the defendant, that the plaintiff has chosen not to exercise his work capacity to the full, spending his time at the hotel. I accept that the plaintiff has shown some motivation almost completing the course and he also applied for a job last year.
207 Further, the medical evidence in this case was largely uncontested and it is accepted that the plaintiff has a very bad back condition.
208 Both Mr Davie and Mr Schofield considered the plaintiff would come to surgery and Mr Schofield, on his most recent examination, found a gradual worsening of the instability in the plaintiff’s lumbosacral spine with the forward slip measuring five mm, an increase of three mm over the previous measurement.
209 I accept that the plaintiff suffers from severe constant back pain and requires MS Contin, a formidable drug, on a regular basis with increased dosages when the pain is particularly severe - a situation confirmed by Dr Rooney’s clinical notes.
210 Taking into account all the evidence, I am satisfied that the plaintiff has a loss of earning capacity of forty per cent or more that is likely to continue into the foreseeable future.
211 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
212 In light of my findings as to the plaintiff’s impairment and incapacity for employment, even if he completed what is clearly appropriate retraining, the situation would not be altered that the plaintiff has a permanent loss of earning capacity of forty per cent or more and he has therefore satisfied the requirements of s. 134AB(38)(g).
213 Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity.
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