Memedovski v Victorian WorkCover Authority

[2014] VCC 798

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE
CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-13-00373

FERMAN MEMEDOVSKI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13 and 15 May 2014
DATE OF JUDGMENT:	4 June 2014
CASE MAY BE CITED AS:	Memedovski v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2014] VCC 798

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity – causation

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38); WorkCover (Litigated Claims) Legal Costs Order 2010

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Jovanovska v Betta Foods Pty Ltd [2009] VSCA 98; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Roleff v Chubb Insurance Co of Australia Ltd (2011) 31 VR 235; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                 Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison SC with Mr R Ajzensztat	Maurice Blackburn
For the Defendant	Mr B McKenzie	Wisewould Mahony

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Terra Harvest Australia Pty Ltd (“the employer”) on 16 April 2009 (“the said date”).

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 s134AB(37) and (38) of the Act.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(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 application pursuant to ss(c) was withdrawn on the morning of the hearing.

6       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.

7       The impairment of the body function must be permanent.

8 By ss(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 “at least very considerable”, and “more than significant” or “marked”.

9       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.

10      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.

11      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.

13      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

14      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

15      The plaintiff relied upon three affidavits and gave viva voce evidence.  He also relied on an affidavit sworn by his son, Besmir Memedovski, on 25 November 2013.  Ms Oliver, human resources consultant, and Mr Terzotis, co worker were 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.

The Plaintiff’s evidence

16      The plaintiff was born in the former Yugoslavia in August 1968 and is now aged forty five.

17      After coming to Australia at the age of five, the plaintiff attended school until about the age of sixteen and then worked in a factory undertaking a toolmaking apprenticeship for about year.  He was then off work for about twelve months because of a hand injury.  Later, he worked in a number of factories until doing a fitting and turning apprenticeship in the mid 1990s when he was in his late twenties.

18      The plaintiff then worked as maintenance fitter for various different companies before starting work with the employer in 2007 in that role at its Dandenong factory.  He was employed on a full time basis, working rotating shifts, two weeks on day shift and two weeks on afternoon shift.

Prior back history

19      In cross-examination, the plaintiff confirmed that he set out in his 2009 Claim Form that he had not had a previous back injury.[3]  He then agreed he had in fact had an injury working at QUF Industries.  He had physiotherapy for some weeks after that incident.[4]

[3]Transcript (“T”) 21

[4]T22

20      The plaintiff could not recall certificates from Dr Baldwin from July to September 1996 but when shown, agreed he had signed them.  Some certificates were for total incapacity and some were for modified duties four hours a day, five days a week.[5]  The plaintiff could not remember having time off at that stage.

[5]T24

21      The plaintiff was then shown a pre-employment medical signed by him in January 2006 in which he ticked “No” to any previous injury or disease resulting from work.  In that form, he answered “yes” and “no” to suffering any back, neck of or spinal injuries.[6]

[6]T105

22      In an application for employment signed by the plaintiff in January 2007, he denied having a previous back condition.  He knew that was untrue when he made that statement.  He did, however, mention a TAC claim.[7] 

[7]T26

23      The plaintiff agreed there was no problem when he completed that form of recalling his prior back problem.  He had no problems with his back during that time.[8]

[8]T27

24      The plaintiff did not specifically refer to back pain 1996 as he did not think it was serious – “it was only muscle”.  He did not think he needed to bring it up.  It did not bother him for work further down the track.  It was not serious for him.[9]

[9]T106

25      The plaintiff could recall having a CT scan organised by Dr Baldwin in February 2005 after he had complained of low back pain for the past one-and-a-half weeks.

26      The plaintiff could recall telling Dr Baldwin that on 11 May 2007, he hurt his back when he bent over to pick up a roller.

27      On 16 June 2008, the plaintiff told Dr Baldwin he had been getting the shakes and some mid thoracic back pain.[10]

[10]T28

28      The plaintiff agreed, as the notes indicted, on 15 July 2008, he was complaining about still having back pain and stiffness. 

29      In November 2008, he was prescribed Tramadol for headaches.[11]

[11]T29

30      The plaintiff denied that riding a Harley Davidson caused him many back problems.  He had had an accident in 2004 when he injured his right hand on the bike.

Employment with the employer

31      The plaintiff suffered injury to his low back and a stress condition whilst working with the employer.

32      The plaintiff attended his general practitioner in September 2008 because he was stressed as he was being unfairly treated by his supervisor.  He had a couple of weeks off work then went back to work for about three months.

33      In January 2009, the plaintiff again had a stress reaction to treatment from his superiors.  He believed he was unreasonably treated and bullied and he went back to his general practitioner, Dr Baldwin, who gave him a couple of weeks off work and then he returned to work.  The plaintiff agreed he continued to complain to Dr Baldwin of stress in the workplace in February, March and April 2009 and he was given WorkCover certificates in that regard. 

The incident

34      On the said date, the plaintiff suffered injury to his low back as a result of lifting and manoeuvring a number of awkward and heavy pieces of steel off the ground at work (“the incident”). 

35      In cross-examination, the plaintiff confirmed the incident happened when it was put to him it did not.[12]

[12]T50

36      The plaintiff confirmed that Mr Terzotis told him to reorganise the whole steel racking; “square with square; round with round; long with long; short with short”.  The plaintiff did this task for approximately 7.5 hours of the shift.[13]

[13]T41

37      Mr Terzotis had never said anything to the plaintiff about being on call if he was needed, unless there was a serious machine breakdown.  He just gave the plaintiff the job sheet and said it was his job for the night, “have fun” and he tapped the plaintiff on the shoulder on the Thursday afternoon of 16 April.[14]

[14]T42

38      The plaintiff confirmed he did the tasks set out on in Item 2 of the job sheet which read:

“Please start to arrange and clean the steel shed, start to clean up steel shed, all small lengths of steel on stand alone rack, type and length, all material on floor to be put away (nothing on floor), arrange in type and length.”

39      The plaintiff disagreed with Mr Terzotis that the short cuts would have weighed 15 kilograms and there would have been about 25 to 35 to pick up.  There were a lot more.  The steel weighed up to 30 to 40 kilograms.  The plaintiff maintained he was moving lengths of steel of 6 to 8 metres.  There were both short and long lengths.

40      Mr Terzotis did not say to the plaintiff not to touch the larger steel, as he would need help.[15]  It was not correct that the following day short pieces were off the floor on the rack and the longer pieces were on the floor.

[15]T40

41      The plaintiff agreed the incident was not witnessed but he did report it to Mr Holmes at 7.30pm that night.[16]  Mr Holmes was staying back and he had just come past to say goodbye and asked the plaintiff how he was going.  The plaintiff said he was not happy and that he had a lot of back and shoulder pain and Mr Holmes walked off.[17]

[16]T47

[17]T49

42      The plaintiff agreed he never reported injury to Mr Terzotis.  The only contact he had was with Mr Holmes.

43      The plaintiff agreed Mr Terzotis was involved in giving him a number of warnings.  The plaintiff denied he agreed to repay the costs of the grinder he had damaged deliberately.  He confirmed he refused to sign a warning relating to him leaving work early.  The plaintiff agreed there were warnings in January 2009 and 15 April 2009 about the quality of his work performance.  He agreed that on the said date, the day after the 15 April 2009 warning, he stopped work.[18]

[18]T47

44      The plaintiff deposed that having reported the injury, within a short time he attended a general practitioner, and eventually Dr Baldwin.  The plaintiff was given a short time off work.  However, because of persistent back pain, he was not able to return to work.

45      The plaintiff agreed he made no mention of his back to Dr Baldwin on 17 April 2009, the day after the incident.  He agreed Dr Baldwin was a careful doctor who listened to him and took careful notes.  When asked why he did not tell Dr Baldwin about the incident, the plaintiff explained he did not think it was that serious.[19] 

[19]T32

46      The plaintiff agreed that if he had any problems with his back at all from the day before he would have told the doctor about it but then said he did not think his back was that bad.[20]

[20]T32

47      There was a further attendance on Dr Baldwin for stress on 24 April 2009 and then on 8 May 2009, at which time the plaintiff agreed he did not mention his back.  He denied this was because he was not having any problems.  He was, but he was focussing more on his mental state.[21]

[21]T33

48      At the time the plaintiff put in his second stress claim in April 2009, it was on the basis he was unfit for work due to stress.[22]  If there had been another problem, he would have said so.  He also said there were physical problems preventing him from working.[23]

[22]T52

[23]T53

49      The plaintiff denied he did not put in a claim because he did not have an injury.[24]   

[24]T54

50      There was a further attendance for stress on 22 May 2009 when the plaintiff agreed he did not mention his back.

51      The plaintiff could not recall an attendance with a medico‑legal psychiatrist, Dr Das, in May 2009.  He denied he said nothing about his back to Dr Das because he did not have a back injury.[25]

[25]T34

52      There were further consultations with Dr Baldwin on 23 June and 15 July 2009 when the plaintiff only mentioned work stress.

53      The plaintiff agreed the first time Dr Baldwin recorded any back problem was 24 July 2009 after the plaintiff had earlier been to the Dandenong Hospital on 22 July 2009.

54      The plaintiff agreed that at the hospital on 22 July 2009, he reported four weeks of ongoing back pain.[26]  However, nothing was happening in those four weeks.  He could not recall anything apart from the incident.  That was the only thing he “could bring it back to”.  When he was talking to the hospital, he was not in the state of mind to remember anything.  He was “really messed up”.[27]

[26]T36

[27]T37

55      The plaintiff agreed his back pain was then not just a bit of a niggle, it was a lot of back and shoulder pain.[28]  He agreed he would have told his doctor if that was the case.

[28]T49

56      The plaintiff then said he thought it was only muscle, that is why he let it go, and he did not think it would have been serious.  He formed that view over the next few days.[29]

[29]T50

57      The plaintiff agreed the first formal complaint to the employer was the Claim Form.[30]

[30]T50

58      Dr Baldwin organised a CT scan.  That investigation apparently showed an injury to the disc in the low back and the plaintiff was referred for physiotherapy.

59      In the middle of 2011, the plaintiff was referred to a psychologist, Dr Young.  As time went on, the plaintiff became increasingly despondent and depressed, in part due to his back injury.

60      The plaintiff’s employment was terminated by letter dated 15 September 2009.

61      In late 2009, the plaintiff was referred to a neurosurgeon, Mr Timms, who advised he should undergo surgery.  Thereafter, the plaintiff sought a second opinion and obtained similar advice.

62      In January 2010, the plaintiff had a CT-guided nerve root injection which did not really help.  He eventually decided he should undergo the surgery, which he was very nervous about, and in September 2011, he had a microdiscectomy on his low back (“the operation”).

63      As a result of the operation, some of the symptoms into the plaintiff’s left leg improved.  However, as of September 2012, when he swore his first affidavit, he continued to suffer from persistent ongoing back pain, all the time radiating into his left leg.  His back and leg pain was made worse by walking for too long or bending, twisting or lifting. 

64      The plaintiff continued under Dr Baldwin’s care and later, he was treated by Dr Thornton.  He also continued to be treated by Mr Timms.  The plaintiff was referred for rehabilitation at Epworth, where he was under the care of Dr Palit.  The plaintiff continued to see Dr Young, who treated him for stress. 

65      The plaintiff was then taking Panadeine Forte for back pain, usually six to eight a week, and also regularly used heat packs.  He also then took Lexapro for depression which had been up and down. 

66      Whilst the plaintiff was suffering stress as a result of work, there had been a number of altercations at the workplace prior to the said date including, he understood, the supervisor who was bullying him was sacked.

67      The plaintiff was then very concerned about his work future.  He had only ever really done manual work as a maintenance fitter and did not believe he could return to work of that nature.  He could read and write.  He had very basic computer skills and his ability to concentrate was affected by pain.

68      The plaintiff’s stress condition also impacted upon his ability and he had a reduced ability to concentrate and his memory was also poor.

69      The plaintiff deposed in his first affidavit, he believed the injury to his back and his psychiatric condition constituted a serious injury because of the effect they had on his day-to-day life and ability to work.

70      The plaintiff swore a further affidavit in November 2013, deposing he had continued to suffer back pain and referred pain into his legs.  He also continued to suffer the symptoms, restrictions and consequences previously deposed to.

71      The plaintiff regularly saw Dr Thornton or his partner, Dr Windows.  They continued to certify him as having no work capacity.  The plaintiff was being provided with prescription medication as required, taking two to six Panadeine Forte several times a week.  He tried to avoid taking that medication every day.

72      When the plaintiff had stronger pain, he took OxyContin on average about three tablets a week.  He also took ordinary Panadeine and recently had been self medicating with alcohol.  He continued to be prescribed Lexapro. 

73      The plaintiff stopped OxyContin over a month ago.  He stopped Nurofen a while ago as it was making him cough up blood.  Panadeine Forte affected him and his memory and concentration.  He told Dr Thornton and Dr Young about that.  A couple of weeks ago the plaintiff was prescribed Endone by Dr Thornton.[31]

[31]T99

74      In August 2013, the plaintiff was referred back to Mr Timms and a further MRI scan was arranged.  Following review, Mr Timms recommended another CT-guided cortisone injection.  The plaintiff found the previous injection of that nature to be painful and it did not produce any long term benefits so he could not see any point in having another one.  Mr Timms did not suggest any other treatment.

75      The plaintiff denied he would not have a further CT-guided injection as his pain was not significant, explaining that the first injection did not have an effect on him and he did not want to repeat the experience.[32]

[32]T99

76      In re-examination, the plaintiff said that injection did not help at all.  He struggled to walk out of the clinic for about an hour and he could not get up and the injection paralysed him.[33]

[33]T100

77      The plaintiff had then ceased hands-on physiotherapy and hydrotherapy as WorkCover had stopped funding.  He last had physiotherapy about two months earlier.  He seemed to get short term relief from his back pain with that treatment.

78      As at November 2013, the plaintiff’s weekly payments had ceased and he had no income.

79      The plaintiff lived at home with his wife and four children aged from twenty three to seven, the younger two at school.  The plaintiff tried to do what he could around the house, such as light housework or driving the children to and from school.

80      The plaintiff did not feel capable of physical work which was the only work he had ever done.  He did not think he could do a desk job because he did not have the skills or aptitude for that sort work and, secondly, he would not be able to sit or stand for extended periods. 

81      Further, the plaintiff’s back pain fluctuated and was variable.  On days when he had severe pain, he needed to lie down in the afternoon and on those days he could not be relied upon to attend for work and, realistically, he could not see himself as capable of work.  He would like to be at work and missed the social aspect of work, as well as the money. 

82      The plaintiff’s wife ran a charcoal chicken shop in Narre Warren in partnership with her sister.  Occasionally, the plaintiff took the kids to the shop to get food or to see his wife but he did not work in the business, nor would he be able to, because there was lifting and prolonged standing involved and that would be physically beyond him.

83      The plaintiff’s wife also had a second job at Bunnings and occasionally, he visited her and his eldest child, who also worked there for a while.  From what the plaintiff had seen, he did not think he could work at Bunnings as there was prolonged standing, bending, twisting and lifting involved and that would be physically beyond him. 

84      The plaintiff disagreed that because of his wife’s business and work at Bunnings, there was no motivation for him to try and get work.[34]

[34]T89

85      During the day, the plaintiff often did the school run and then perhaps had a coffee.  He often visited his parents in Dandenong and while visiting them he needed to lie down to get some relief from back pain.  Some days he stayed at his parents’ during the afternoon and then collected the children from school.

86      As of November 2013, the plaintiff’s family had moved into a one-acre property.  The plaintiff tried to use the ride-on mower but found it was too painful.  Usually, his eldest son did the gardening.

87      The plaintiff had always wanted a one-acre property since he was young.  He denied he would not move to a property of that size if he had a back problem.  He just does odd jobs and housework and he has got to keep himself active.  The old property in Dandenong is now rented out.[35]

[35]T85

88      The plaintiff bought a 6.5-metre boat in mid 2012 for $17,000.  He uses it from time to time and has been out in it a few times fishing, every couple of months.  It is unhooked by family members.  He bought it more for the kids.[36] He bought the boat to keep his boys together.[37]

[36]T57

[37]T89

89      The plaintiff drove a car but by the time he had driven the kids to school, about a 25-minute drive, he had increased back pain and most afternoons he needed to take painkillers or rest.

90      The plaintiff swore a further affidavit on 30 January 2014.

91      The plaintiff was unable to recall entries in the Langton Medical Centre clinical notes of him attending with back pain on 28 February 2005, 25 January 2006 and 16 June 2008.

92      Having read Dr Baldwin’s entry of an attendance on 11 May 2007, the plaintiff recalled he experienced lower back pain following an incident at work involving a roller around that time.  He did not remember experiencing significant or ongoing back pain following that incident. 

93      Having read Dr Baldwin’s entry of 15 July 2008, the plaintiff could recall having some pain in his mid and upper spine at approximately that time but he did not remember then experiencing significant ongoing pain.

Video surveillance

94      The plaintiff was shown four short films.  Two taken before the surgery, in June 2010 and June 2011, showed the plaintiff walking less freely than was the case in the post surgery film.

95      The plaintiff explained he had his days.  It was up and down and there were days when he felt good and days where he felt really, really bad.[38]

[38]T64

96      The plaintiff’s son was shown carrying a box on 19 June 2010 because the plaintiff could not lift it.[39]

[39]T101

97      In the last video taken on 16 December 2012, the plaintiff was shown at Bunnings looking at some merchandise and at one time, squatting looking at the shelves.  A still of the video showed the plaintiff at 12.43pm squatting, looking at the three bottom shelves. 

98      The plaintiff can squat and he squats comfortably and doing so does relieve a lot of pain.  He does not do so without putting his hand out, because he has to sort of balance himself, as was shown in the film.[40]

[40]T69

99      The plaintiff agreed he told Ayres that he avoided squatting because of back pain and that it was very hard to squat after surgery.  He could not recall telling Ayres he could not squat.  He confirmed he was squatting in the photograph.  He knows his left arm was resting on the shelving in front of him.[41]

[41]

100     The plaintiff confirmed he has good and bad days.  He has a day where he feels really great and happy about it and there are days when he is “stuffed”.  He always tries.[42] 

[42]T67

101     The plaintiff agreed that his physical tolerances had improved since the interview with Ayres in 2012.  He could now lift around 3 to 3.5 kilograms and he has lifted up to 10 kilograms.  He can stand and sit for longer than 20 minutes.  The plaintiff can now walk for longer than 10 minutes.  He can reach overhead.

102     The plaintiff agreed he avoided bending because of back pain.  When shown in the video bending, he was supporting himself leaning into the car.[43]

[43]T68

103     The plaintiff denied there was an inconsistency between his affidavit evidence of having to lie down due to his back pain and the history to Dr Sutcliffe that he had pain lying down.  He has to break up periods lying down, get up and move around.[44]  He can lie down for 15 to 20 minutes.[45]

[44]T73

[45]T101

104     The plaintiff agreed he told Ms Green that he had developed headaches recently but they are not such a problem anymore, since he stopped taking OxyContin.  He then agreed that headaches had been a problem since January 2006 as he set out on the pre-employment medical.[46]

[46]T75

105     The plaintiff agreed that his stress condition gave him problems with concentration and his memory was poor.  He then said his memory and concentration was affected by both physical and mental problems.[47]

[47]T76

106     The plaintiff agreed with Dr Young’s view that his psychiatric condition had improved since he started treatment with him.  The plaintiff agreed that sleep problems of which he complained to Dr Young related to stress, and then went on to say it had lot to do with pain, although there was no mention of this in his affidavit.[48]  He has to get up two or three times a night just to move around.  He thought he told a few doctors that he had problems staying asleep due to pain and he had told his general practitioner.

[48]T77

107     The plaintiff agreed with Dr Athey’s comments following examination of the plaintiff in September 2013 that his condition was getting worse.  The plaintiff also agreed, as Dr Young had reported, his condition was improving.  When asked about this conflict, the plaintiff said there were days when he has nothing to look forward to, it just “eats [him] up sometimes”; however, Dr Young has taught him relaxation techniques.[49]

[49]T79

108     The plaintiff agreed he had told Dr Young, probably at the start, about drinking as a form of self-medication.  The plaintiff agreed, of more recent times, he told Dr Young his alcohol consumption was low to moderate and under much better control.

109     The plaintiff agreed he told Dr Athey in 2013 that he drank heavily and felt very depressed and had resumed drinking to a much higher level than previously.  The plaintiff agreed he also told Dr Athey that he cried and felt a little bit better at the end of it.[50]  The plaintiff confirmed at the moment his drinking is under control.  He denied he was deceiving either doctor.[51]

[50]T81

[51]T82

110     In re-examination, the plaintiff explained that his drinking binges might just go for a week or so, so his answer was not inconsistent.[52]

[52]T100

Work

111     The plaintiff agreed he had been looking for work in car sales and spare parts and had had had no luck with local businesses in Dandenong.[53]  He had been told by his friends in the trade that the work gets a bit hectic and he might not be suitable for the job.[54]  He could not see himself working in spare parts as there was a lot of stocking and restocking.[55]

[53]T90

[54]T91

[55]T93

112     The plaintiff thought it would be a bit hectic doing car sales, having to get in and out of vehicles, and he was “lost with computers”.  There would also be problems with sitting.[56]

[56]T94

113     The plaintiff disagreed that a job where he was moving around, getting up and down, would not be better for his back, as those movements would aggravate his back.

114     The plaintiff agreed he had not made any effort to undertake any further computer courses and what was stopping him was mostly sitting down.  He agreed his English was good.

115     The plaintiff did not even think he could do part time work most days.  He would be willing to give it a go as a rental sales person, renting equipment or storage, but he has not tried it yet and did not think he could do it at the moment.  He was willing to give anything a go and still is, but there are days when the pain is just too much and he takes medication, which sometimes he “pumps”, so it is hard.[57]

[57]T98

The Plaintiff’s taxable earnings

Year Ending	Amount
2005	$34,314
2006	$10,086
2007	$25,270
2008	$58,415
2009	$49,454
2010	$53,104
2011	$46,611
2012	$49,184

Lay Evidence

116     The plaintiff’s son, Besmir, swore an affidavit on 25 November 2013.

117     Besmir is presently aged twenty and currently works in the charcoal chicken business.  He lives at home.

118     Besmir has a close relationship with the plaintiff, who was very involved with his life when he was growing up.  On the weekends, the plaintiff took him to his local football matches and also had a kick with him and regularly helped Besmir train at the gym.

119     In the past, Besmir recalled the plaintiff being very active and he enjoyed spending time with his family as much as he enjoyed work.  As a family, they went camping or overseas together.  In particular, Besmir went fishing with the plaintiff and his brothers which was always a lot of fun.  However, since the plaintiff’s injury, they have not been able to go on overseas trips or camps as it caused the plaintiff too much back pain.  Although they have gone fishing a few times, the plaintiff will not join in because he has back pain out on the water.

120     As Besmir got older, the plaintiff started to show him how to work with his hands and tools and the plaintiff enjoyed working on various projects around the home and for friends.  They worked on many things together including kitchen renovations, building fences and verandas, assembling sheds and painting homes but the plaintiff had been unable to do those projects since his injury.

121     The plaintiff’s back injuries had a big impact on him and because he could not be as physically active as he once was, he relied on Besmir to do a lot of things he would previously do.  Besmir helps him by washing and drying the dishes, hanging out washing, doing vacuuming and gardening.  He has to mow the lawn, do weeding, sweep, prune the flowers and rake up leaves, which sometimes takes him a whole day.

122     Besmir does not spend as much time with the plaintiff as he once did but when he does, it is usually because he has to pick up the younger siblings or drive the plaintiff to the chicken shop.  They usually go there during lunch and stay for about an hour to talk to his mother and they sometimes have something to eat, or the plaintiff will go there with his other son.

123     Whilst at the shop, the plaintiff alternates between siting and standing and he is visibly in pain.  He also holds his back at times and complains out loud he is in pain.  Besmir has never seen the plaintiff do any work at the family business since injury. 

124     The plaintiff’s mood has changed since his injury, having previously been happy, social and outgoing and enjoying a laugh.  However, since the incident, he has been often depressed and sometimes angry.  He will always complain that he is pain and sometimes becomes so frustrated he yells at Besmir.  The plaintiff will often complain he cannot cope, that his back is killing him and that everything is going wrong and he is not the same person Besmir remembered him to be.

Medico-legal examiners

The Plaintiff’s treaters

125     Dr Baldwin was the plaintiff’s initial general practitioner.  In his report of June 2009, he detailed attendances from 11 September 2008 until June 2009 relating to a stress claim, warnings at work and allegations of bullying.  At various times during that period, Dr Baldwin certified the plaintiff unfit for work.

126     Dr Baldwin felt the core issue was whether the plaintiff’s current health problems were the result of unfair criticism, harassment and bullying in the workplace, or whether he had spontaneously developed and agitated a depressive illness causing his work to be criticised.  Dr Baldwin then thought the plaintiff’s condition was a result of his treatment in the workplace. 

127     The plaintiff first attended complaining of pain in his neck and shoulders and right leg on 24 July 2009, having gone to Dandenong Hospital and been referred for a CT scan of his lumbar spine.

128     The plaintiff returned on 10 August 2009.  Dr Baldwin thought the onset of the plaintiff’s back pain appeared to be related to the work he was doing lifting pieces of steel, a job he would not normally be doing as a maintenance fitter.

129     Dr Baldwin noted this onset of back pain was in the context of a previous WorkCover claim for stress and as a consequence, there were communication problems between him and the employer.  The plaintiff had been unable to relate the symptoms at the time it occurred.  The plaintiff was referred for conservative treatment and sent for another CT scan, which confirmed the clinical diagnosis of disc prolapse.

130     Dr Baldwin noted, in view of the problems he had had with his previous WorkCover claim, the plaintiff had been reluctant to submit another claim for his back but when there was clear-cut evidence on the CT scan, he decided to proceed with the claim and he gave the plaintiff appropriate certification.

131     Dr Baldwin noted, in mid-September, the plaintiff was sacked, which distressed him further.

132     In October 2009, Dr Baldwin referred the plaintiff to Mr Timms, neurosurgeon, and recommended and epidural steroid injection and MRI scan and thought the plaintiff was likely to require surgery.  The epidural was undertaken on 5 January 2010 but he felt it gave no significant relief.

133     Dr Baldwin also referred the plaintiff to Mr Rogers, neurosurgeon, for a second opinion, as the plaintiff was keen to avoid surgery if possible.  Mr Rogers thought surgery was not indicated and recommended referral to Epworth for pain rehabilitation with Dr Palit.

134     In November 2010, Dr Baldwin reported the plaintiff’s condition remained unchanged.

135     Dr Thornton took over the plaintiff’s treatment at the Langton Medical Centre.  He reported in January 2012 that the plaintiff had ongoing lower back and buttock pain and had become frustrated and depressed.  He was having physiotherapy, taking analgesia and regularly seeing Dr Young.  At that stage, Dr Thornton thought all aspects of social, family and recreational life were adversely affected.

136     In August 2013, Dr Thornton reported that over the last eighteen months, the plaintiff’s condition was largely unchanged and he was in considerable pain in his lower back, with bilateral leg pain and poor mobilisation.  He was depressed and angry.  Dr Thornton awaited a further evaluation by Mr Timms.

137     Dr Thornton noted the plaintiff gained some relief with hydrotherapy, analgesia and antidepressants.  Counselling with Dr Young had definitely improved the plaintiff’s mental state.

138     At that stage, Dr Thornton thought the plaintiff was not significantly improved.  His lumbosacral intervertebral disc lesion had not responded to conservative treatment or surgery.  The plaintiff now had a chronic pain condition with reactive anxiety, depression and an Adjustment Disorder.  Permanent pain and loss of movement was likely.

139     Dr Thornton thought no employment was possible at that time, and suitable training in another field was highly improbable.

140     As of November 2013, Dr Thornton reported that he thought the disc injury was certainly a major contributing factor to the plaintiff’s incapacity for work both now and into the foreseeable future.  He also noted, understandably, psychological issues had developed as a direct consequence of chronic pain and dysfunction.

141     The plaintiff was initially referred to Mr Timms in December 2009 for review regarding back injury after a lifting incident at work.

142     On 21 December 2009, Mr Timms sought funding from Xchanging for a lumbar L4-5 microdiscectomy on the left.

143     At the initial consultation, Mr Timms also recommended a CT-guided nerve block.

144     Mr Timms diagnosed a left sided L4-5 disc prolapse evident on both CT scan and MRI scan.  The plaintiff was next seen in April 2013 and arranged an up-to-date scan and again sought funding for a left sided L4-5 microdiscectomy.

145     Surgery was undertaken on 23 September 2011.  There was post-operative review in October 2011 and again in April 2012 where the plaintiff had some persistent back pain and sciatica and an up-to-date MRI scan was performed, which revealed no neural compression but some scarring from the previous surgery.  The plaintiff then had cervical and mid thoracic complaints and investigations were organised in that regard with an attendance in July 2012. 

146     On 16 August 2013, the plaintiff had weakness in both legs and decreased straight leg raising and a sensory disturbance in the L5 distribution of the left leg.  A new MRI scan was arranged.  This was discussed with the plaintiff in September 2013.

147     Mr Timms thought there was a small disc protrusion of L5-S1 which was likely the origin of the plaintiff’s symptoms.  He contacted the plaintiff and arranged for a further injection and encouraged him to continue physiotherapy treatment and exercise plan.

148     The current assessment was that the plaintiff was now developing a disc injury and bulging at the level of L5-S1.  He hoped the plaintiff would be managed successfully without any further surgery.

149     Mr Timms thought the plaintiff’s symptoms had left him completely incapacitated and should his symptoms worsen and neurology develop, he may then require operative intervention.  It was then hoped surgery would be avoidable.

150     On 16 August 2013, Mr Timms wrote to Dr Thornton following review of the plaintiff, who presented with bladder and bowel complaints, which Mr Timms suspected may be a recurrence or ongoing issues with the lumbosacral spine.

151     Mr Myron Rogers, neurosurgeon, wrote to Dr Baldwin in July 2010 after he had seen the plaintiff. 

152     Mr Rogers noted the MRI scans of January 2010 demonstrated mild multilevel disc degeneration with posterior annular tears present at L4-5 and L5-S1 and there appeared to be some compromise at the left L5 nerve root in the lateral recess.

153     For many reasons, Mr Rogers did not feel the plaintiff would be a good surgical candidate, even for a microdiscectomy, and he suggested pain management.

154     Dr Young, consultant psychologist, first saw the plaintiff in June 2011 on referral from Dr Thornton.

155     In his report of August 2013, Dr Young pointed out his initial opinion was the plaintiff was suffering with chronic pain and also a severe Adjustment Disorder with Anxious and Depressed Mood.

156     Over the course of treatment, the course of the adjustment upset had been variable but generally showing a trend towards gradual improvement.  At that stage, Dr Young thought the adjustment upset was in the mild to moderate range.

Medico-legal examiners

157     The plaintiff was examined by Mr Michael Fogarty, orthopaedic surgeon, in September 2013.  The plaintiff told him of the incident and subsequent treatment.

158     On examination, there was obvious restriction of thoracolumbar movement.  There was diminished power and sensation over the left L5 dermatome on the left lower leg and foot.  Reflexes were somewhat variable.

159     Mr Fogarty noted the report of the January 2012 CT scan and the MRI scan of January 2010.

160     Mr Fogarty’s assessment of the plaintiff’s physical injury was that he had a lumbar disc annular tear with small protrusion posterolaterally to the left at the L5 level with evidence of at least irritation of the fifth lumbar nerve root on the left side.  Additionally, the plaintiff had developed significant anxiety and depression. 

161     Mr Fogarty believed restriction, as to any significant weights or sustained posture, related to physical injury.  In his view, the plaintiff could not return to his pre-injury employment as a maintenance fitter.

162     Having read the Ayres’ report and having examined the plaintiff, Mr Fogarty thought the plaintiff was not fit to return to employment in manual labour style positions.

163     Mr Fogarty believed theoretically, the plaintiff may be able to return to suitable employment not involving any manual labour suggested in the report but in the present situation, it did not appear to him that the plaintiff was capable of returning to any work in the near future. 

164     Mr Fogarty thought the plaintiff was not able to work at present, having regard to his injury, his current level of disability, his work history and transferrable skills.  He thought the plaintiff would require ongoing treatment but that would depend upon a further assessment by his neurosurgeon, including results of a further MRI scan, and Mr Fogarty was not in a position to advise what further surgical operation was required.

165     Mr Fogarty provided a supplementary report, having been provided with a report of a 2007 CT scan and Dr Baldwin’s notes in May 2007 of an injury at work and reports from Mr Carey and Dr Thornton.  This material did not change Mr Fogarty’s view.

166     The plaintiff was examined by occupational physician, Dr Helen Sutcliffe, in September 2013. 

167     On interview, the plaintiff described to her increased pain when lying on his side or on his back. 

168     On examination, Dr Sutcliffe found an altered gait, evidence of surgery, restricted range of movement, altered sensation, altered power and a discrepancy in the circumference of the calves.

169     Dr Sutcliffe noted various investigations that had been undertaken, and also reports from Mr Timms, Mr Rogers and Dr Mutton.

170     Dr Sutcliffe thought the plaintiff sustained a back injury in the course of his employment in 2009 when he sustained aggravation of degenerative change in the lumbosacral spine, but also onset of disc derangement at L4-5 with some impact on the left L5 nerve root.  In her view, the plaintiff had residual signs of radiculopathy.

171     Dr Sutcliffe considered the plaintiff had no capacity for pre-injury work where he would be required to perform bending, lifting, twisting and turning, and holding a position.  He could not undertake work he was trained for in fitting, turning and maintenance. 

172 Taking into account factors under s5 of the Act, Dr Sutcliffe believed the plaintiff had no capacity for employment and could not present in a sufficiently reliable, productive or efficient manner to the satisfaction of an employer.

173     Dr Sutcliffe did not believe any of the jobs suggested by Ayres were within the plaintiff’s capacity because of the nature of the duties.  In her view, the plaintiff had no capacity to sit or stand for sufficient periods or walk for sufficient periods to work as a clerk, nor could he sit or stand for long.  Thus, there were would be problems working as a sales assistant and problems unpacking. 

174     Dr Sutcliffe thought the plaintiff had no capacity to do the tasks as a rental salesperson, taking into account the sitting, standing and computer-based work, nor could he do heavy lifting and moving of equipment or rapid moving or cleaning of cars.  Dr Sutcliffe did not believe the plaintiff had the experience or physical capacity to undertake motor vehicle salesperson work.

175     Dr Sutcliffe also thought the distracting nature of the plaintiff’s pain would also limit his capacity to undertake those occupations.

176     However, at the age of forty-five, Dr Sutcliffe believed the plaintiff should be provided with some training in an attempt to return him to part time work.  She did not think he could return to full time work at any stage because of the intensity of his symptoms and disability.

177     Dr Sutcliffe considered the restrictions on work were permanent and the plaintiff had no capacity to do pre-injury duties because of his inability to undertake sufficient standing, walking, sitting, bending, lifting, twisting, turning, pushing and pulling. 

178 Taking into account s5 factors, Dr Sutcliffe thought the plaintiff had no capacity to perform any work whether pre-injury, alternate or suitable on a permanent, sustained, consistently reliable basis to the satisfaction of any employer.

179     In her view, with extensive retraining, the plaintiff may be able to undertake part time work, but as a result of his physical injuries, she believed he would be unable to work more than four hours, three days a week if he was provided with extensive retraining, because of his physical incapacity.

Investigations

180     Mr Timms organised an MRI scan of the plaintiff’s lumbar spine in January 2010. 

181     It was reported there was a small annular tear associated with a small central and left paracentral L4-5 disc protrusion.  It was noted the left L5 nerve root may be impinged as it buds from the thecal sac as a result of the disc lesion.  There was a tiny annular tear at L5-S1 posteriolateral to the right noted.

182     A CT lumbar injection was conducted at that stage and also earlier, on 26 August 2009.

183     There was an MRI scan of the lumbar spine organised by Mr Timms in April 2011. 

184     It was reported there was central and left paracentral disc protrusion at L4-5 displacing posteriorly the L5 nerve root within the articular recess.  There was no overt compressive radiculopathy seen.

185     There was an MRI scan of the lumbar spine organised by Mr Timms in April 2012. 

186     It was reported there was post-surgical fibrous scarring seen in association with the L4-5 left hemi laminectomy, with scar tissue seen at the laminectomy site on the left side of the vertebral canal.  There was no recurrent focal disc protrusion.  The combination of circumferential disc bulge and mild facet joint degeneration resulted in mild narrowing of the left subarticular recess and mild to moderate narrowing of the left neural foramen.  There was small right paracentral annular fissure and no neural impingement at that level.

187     An MRI scan of the cervical and thoracic spine was organised by Mr Timms in May 2012. 

188     It was reported no neural compromise was demonstrated.  There was no definite cause for thoracic back pain identified.  There was straightening of the normal cervical lordosis which may be on the basis of pain, positioning or muscle spasm, alone or in combination.

189     Mr Timms organised an MRI scan of the lumbosacral spine in August 2013. 

190     It was reported at no level in the lumbar spine was there any significant neural compromise.  There was disc contact with the right S1 and L5 nerve roots in the subarticular recesses and with the L4 nerve roots in the subarticular recesses.  This was non specific and of questionable significance.  It was noted there may be nerve root irritation.

Correspondence

191     There was an email chain commencing with an email from the Human Resources Manager, Duanne Barnham, to Anthony Criddle on 12 October 2009 in which he advised he thought it was a complete backflip to accept the plaintiff’s claim when it had been earlier indicated it would not be accepted as it was lodged outside the 30-day period, and he also believed there may have been a pre-existing injury caused by a motorbike accident.

192     Mr Bert Boffa from X Changing emailed Dr Baldwin on 13 October 2009 advising he was the WorkSafe general practitioner and needed to determine whether the plaintiff’s back pain was work related or not.  He advised Dr Baldwin of the claimed incident on 16 April 2009 and the plaintiff’s attendance at Dandenong Hospital in June or July 2009.

193     Dr Baldwin responded later that day, advising the plaintiff did not injure his back in a motorbike accident. 

194     By letter dated 14 September 2012, WorkSafe advised the plaintiff’s solicitors that the application pursuant to s134AB had been received and would be subject to the WorkCover (Litigated Claims) Legal Costs Order 2010. 

195 By letter dated 14 March 2013, the defendant’s solicitors advised the plaintiff’s solicitors, having received the Originating Motion, it was their view the plaintiff would not satisfy the economic loss test pursuant to s134AB(38) of the Act and a notice pursuant to s4, Part A of the WorkCover (Litigated Claims) Legal Costs Order 2010 was enclosed. 

196     The plaintiff’s solicitors were advised or instructed that in the event the plaintiff agreed to dismiss his claim for leave to bring proceedings for damages for loss of earning capacity, the Victorian WorkCover Authority (VWA) would consent to an order which would entitle him to proceed with a claim for pain and suffering only.

197 The notice set out that the VWA were satisfied that the injury the plaintiff incurred on 16 April 2009 to his low back satisfied the requirements of s134AB(38)(b)(i) but not the requirements of ss(2) of that Section.

198     By letter dated 30 January 2014, the defendant’s solicitors advised the plaintiff’s solicitors that they were instructed to formally withdraw in totality the notice.

Vocational evidence 

199     Ms Mary Oliver, human relations consultant of Flexi Personnel, provided a report dated 14 October 2013 following a two-hour interview with the plaintiff on 26 August 2013.

200     Ms Oliver had available a report from Epworth of 9 September 2011, Mr Timms’ report of 8 September 2010 and Dr Baldwin’s report of January 2012 in which he advised he believed the plaintiff remained unfit for all work.

201     Based on the factors presented to her as a recruiter, Ms Oliver thought the plaintiff was significantly hindered in his constant ability to successfully perform ongoing full time or even part time work.

202     Ms Oliver carried out various tests.  The plaintiff passed the 20-minute basic screening test for general aptitude, numeracy and literacy.  However, he failed the observation test and did not attempt the writing test, commenting he went blank and could not concentrate.  “It was like [he] hit a black wall – that was it.”  He passed the math’s test with a score of 60 per cent.

203     Ms Oliver thought the plaintiff’s pain and consequential physical disabilities would have a major negative effect on the plaintiff’s capacity to productively perform in his pre-injury role or any alternative employment of a parallel nature, as dictated by his employment history. 

204     Ms Oliver believed the plaintiff was not currently a candidate for retraining as he would be significantly inhibited by the distraction of his pain, fatigue, not good concentration and memory, daily headaches, lack of commercial computer knowledge and significant physical barriers, especially when combined with the negative effects of his medication.

205     Ms Oliver provided an estimate of gross theoretical annual earnings had the plaintiff not been injured, noting the plaintiff’s earnings in the 2007-2008 financial year of $58,415.  Over the following years with incremental increases based on the Australian Bureau of Statistics wage price index labour services of between 3 and 3.9 per cent, she concluded that as of 2012-2013, the plaintiff would be earning $69,309.13.

206     Ms Oliver also provided wages details pursuant to various awards: 

§  despatch clerk, $18.09 gross per hour

§  inventory clerk, over $17.00 per hour

§  logistics clerk, $17.34 per hour

§  sales assistant, $17.98 per hour

§  retail sales person, $17.98 per hour; and

§  motor vehicle sales person in the range of $18 to $19 per hour.

207     For an administrative assistant, year 1 to 2, the rate was $17.41 part time per hour, and level 1 to 2, $18.27 part time per hour.

208     On an individual basis, Ms Oliver thought the plaintiff’s back pain alone would hamper his return to work prospects into economically self sustaining work on a full or even part time basis in the foreseeable future. 

209     In her viva voce evidence, Ms Oliver confirmed that she has no formal university qualification to practice as a human relations consultant and her training has been industry based.

210     In the last eighteen months, ninety per cent of reports compiled by her have been prepared on behalf of the plaintiff’s solicitors for applications involving both the Transport Accident Commission and the VWA.  In recent times, that work has required very little in the way of worksite assessments.  Prior to that time, Ms Oliver performed essentially the normal human resources role.

211     Ms Oliver confirmed that she had not specifically addressed any particular job in her report.[58]

[58]T119

212     Having been told of other medical opinion that the plaintiff had a capacity for light work, Ms Oliver explained, as a general rule, a person, regardless of how the light duties are, needs to perform most, if not all the duties, and she did not believe the plaintiff could perform work unrestricted.[59]

[59]T120

213     Ms Oliver agreed that it could not be specifically said whether a worker could do a job or not until they tried it, but she went on previous experience as to whether, based on the medical information and the capacity to perform, whether the job was recommended or not.[60]

[60]T124

214     The plaintiff did not volunteer anything to her in an interview about going off work on a stress claim.

215     Ms Oliver thought, in terms of further computer training or a further course, the plaintiff’s poor concentration, daily headaches and fatigue and memory could negatively impact on his performance.[61]

[61]T126

216     The plaintiff told her he had started to experience daily headaches recently.  She could not specifically recall any attribution of those headaches.  He just said his memory and concentration were poor.

217     In re-examination, Ms Oliver confirmed she was aware of what was involved in working as a spare parts operator.  It involved computer work and also engaging face to face, as well as telephone sales.  Traditionally, spare parts are held at the back of house on high shelving on cement floors.  There is a computerised recording of stock.  Based on the information the plaintiff gave her at interview, Ms Oliver did not think he could cope with that work.

218     Ms Oliver has also done assessments for the roles of despatch, inventory, logistics, order clerk and sales assistant.  With the restrictions the plaintiff has identified, she thought he had a very minimal, if not negligible, capacity for work part time in those roles.[62]

[62]T131

219     The ANZSCO job descriptions in the NES were generic and not specific to an individual workplace.

220     Ms Katrine Green carried out vocational assessment in September 2013.

221     Ms Green described the plaintiff’s lack of suitability for the roles suggested by Ayres of tradesperson, fitter and turner, product quality controller, production scheduler/estimator, production supervisor, welder, factory process worker, forklift driver, courier driver, motor vehicle spare parts interpreter and sales person.

222     In regard to the medical opinion, the analysis of the occupations and the physical demands of the core duties, Ms Green concluded that, due to the plaintiff’s back injury and current physical capacity, he was unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future.

The Defendant’s lay witnesses

223     MR Peter Terzotis, former maintenance supervisor with the employer, swore an affidavit on 22 January 2014. 

224     Mr Terzotis recalled that on the said date, he asked the plaintiff to clear some short offcuts of steel from the floor of the steel shed.  These short cuts weighed less than 15 kilograms and he estimated there would have been about 25 to 35 short cuts to pick up.  There were longer cuts but he specifically told the plaintiff not to touch those as he would need help.

225     Mr Terzotis inspected the shed the following day and the short cut pieces were off the floor in the rack.  The longer pieces were still on the floor as he instructed.

226     At no stage on the said date did the plaintiff report a back injury to him and at no stage did the plaintiff say anything to him about the job being too hard. 

227     Exhibited to that affidavit was a statement made by Mr Terzotis on 30 September 2009.

228     Mr Terzotis set out that in April 2009, he undertook a review of the entire maintenance fitter’s work.  He typed out a critical review of the plaintiff’s work and discussed it with him in Marshall Holmes presence. 

229     On 15 April 2009, there had not been any change in the plaintiff’s work performance or quality and he could not accept any criticism, so Mr Terzotis issued him with a written warning, identifying the areas of work in which he was failing.

230     In early 2009, Mr Terzotis started issuing the maintenance fitters with written tasks he wanted them to perform on their shifts.

231     On 15 April 2009, he issued the plaintiff a written task.

232     Mr Terzotis walked into the steel shed with the plaintiff and told him he wanted him to pick up all the steel lengths on the floor and place them in the appropriate bracket according to their type and length.

233     The plaintiff said he could not do the big stuff which he referred to as long lengths of steel.  Mr Terzotis showed him it was only the short lengths he wanted him to pick up.  He felt the plaintiff had not read the written task sheet at that time.

234     When he left the shed, Mr Terzotis was happy the plaintiff fully understood that all he was required to pick up was the offcuts of steel tubing, angle iron or rod which did not exceed 15 kilograms in weight for any one piece.

235     On the said date, Mr Terzotis returned to work on day shift and examined the steel shed and found all the small offcuts had been correctly packed as per the tasking.  The longer lengths of steel had not been touched and were in the same state as the previous day.  The plaintiff had done a good job.

236     Neither that day, nor any day since, did Mr Terzotis receive a report from the plaintiff of any injury to his back while performing this job, nor had he received a report from a third party regarding an alleged injury. 

237     On the said date, the plaintiff was working alone on the afternoon shift.  Should he have required assistance, he was to call upon the team leader to assist him.  The plaintiff had in the past asked for assistance and it had been provided.  The plaintiff knew Mr Terzotis was always on call by mobile should he want to discuss anything with him.

238     Since the afternoon shift on the said date, the plaintiff had not returned to work, nor had he informed Mr Terzotis why he was absent.  He had since been informed by Marshall Holmes why the plaintiff had been absent.

239     There was an earlier statement signed by Mr Terzotis on 18 May 2005 in which he detailed his dealings with the plaintiff since March 2009.  During that month, he had to go to the plaintiff and ask him to re-do certain small tasks as they were not to any standard of workmanship.  This situation continued over April 2005.

240     Mr Terzotis stated the plaintiff was very defensive about his work and he did not accept responsibility for the standard and again had many reasons why the standard was not met.  He noted the plaintiff was not a team player and criticised and blamed everyone except him.  The plaintiff had completed a job the day before the said date which was of a low standard.  The plaintiff would not take responsibility for his work standard.  Mr Terzotis noticed the following day when he was at work (namely the said date), the plaintiff was absent. 

241     In cross-examination, Mr Terzotis confirmed that in April 2009, the practice of typing out job sheets for staff, which he would go through with them at the start of their shift.[63]  Generally, these jobs were done if there were no other issues in the plants, thus fitters were given work like that if there was no work on plant equipment.[64]

[63]T140

[64]T140

242     Mr Terzotis confirmed that the plaintiff was told to do Item 2 on the job sheet, clearing the steel shed, namely item 2.  He went through it with the plaintiff.  The task was to clean up the steel rack.  All material on the floor was to be put away and nothing left on the floor.[65]  It was incorrect that the plaintiff was to clear all the material on the floor as set out on the job sheet because they went through the job.[66]

[65]T141

[66]T141

243     Mr Terzotis would talk to a worker about a job, doing a small risk analysis, making sure both parties were comfortable with the job.

244     In his statement, Mr Terzotis described how he walked into the shed with the plaintiff and told him he wanted to pick up all the links on the floor and place them in the appropriate rack.  The plaintiff said he could not do the “big stuff,” he was not comfortable doing it.[67]

[67]T142

245     Mr Terzotis was taken to his affidavit where he had deposed the plaintiff, at no stage, said anything to him about the job being too hard.  He disagreed these were contrary versions.[68]  Because the plaintiff could not do part of the job, it does not mean the whole job is hard.  There was still 90 per cent the plaintiff could do.[69]

[68]T143

[69]T143

246     Mr Terzotis agreed the job was to put long with long, short with short.[70]  He denied the items were heavy, weighing 30 to 40 kilograms, probably closer to 25 to 30 kilograms.  He agreed that some of the lengths were up to 6 to 8 metres.

[70]T143

247     The plaintiff brought up the issue of the longer cuts of steel so there was definitely discussion about it.[71]

[71]T144

248     The day after the alleged incident, or as soon as the plaintiff made the complaint, “we walked through the job, by Marshall Homes”.[72]

[72]T146

249     Mr Terzotis could not recall the exact date the plaintiff made a complaint of his back pain.  Mr Terzotis went the very next morning to have a look at what work had been done.  He thought Marshall Homes had come once the complaint had been made.[73]

[73]T146

250     Mr Terzotis then said he really would be stretching his memory.  He thought it was a couple of days later a complaint was made by the plaintiff about hurting his back, a couple of days after the task was given.[74]

[74]T146

251     Mr Terzotis then said Mr Holmes would be a lot better to answer the questions, he handled complaints and paperwork and he would be more properly correct on this issue.[75]  He probably agreed with what Marshall Holmes said.  He remembered a complaint was made but exactly how long after, he was really guessing.  He could not recall if the plaintiff was still working at the factory when the complaint was made.[76]

[75]T147

[76]T147

252     Mr Terzotis disagreed the plaintiff had cleared the whole floor.

253     Mr Terzotis thought he was working the next day and he and the plaintiff went and looked at the shed together.  The plaintiff was showing what he had done.  He did not think he had any discussion with him about hurting his back at that time.

254     Having been told in re-examination that the claim was first lodged on 9 September 2009, that did not help Mr Terzotis remember when he first learned of the plaintiff’s back injury.  It was a long time ago and he did not have any documentation or anything like that, and it was very difficult to say and he would just be guessing.[77]

[77]T148

255     Mr Marshall Holmes swore an affidavit on 21 January 2014 exhibiting statements made him on 18 May and 30 September 2009.

256     Mr Holmes noted in mid-2008, an issue arose with the plaintiff about overtime where the plaintiff thought he was entitled to overtime payments.

257     The plaintiff was issued with a warning on 15 April 2009 over work performance issues.

258     The plaintiff attended work on 16 April 2009, coming in early to attend a meeting with him and Mr Terzotis, even though he was to start at two o’clock.  They discussed the content of the warning with the plaintiff in that meeting and he took issue with its contents.

259     After the meeting, the plaintiff worked his shift, finishing it about 10.15pm.

260     On 17 April 2009, the plaintiff submitted a WorkCover stress claim.  He did not return to work after that.  The claim was rejected and taken to conciliation.

261     On 10 September 2009, the plaintiff gave the employer a WorkCover Claim Form dated 9 September 2009 for a back injury allegedly sustained on 16 April 2009. 

262     This was the first the employer knew of any alleged low back injury.  The plaintiff did not report the low back injury to him on 16 April 2009, nor on any other subsequent date. 

263     Mr Holmes’ statement of 18 May 2009 dealt with the history of warnings and in particular, a warning to the plaintiff on 15 April 2009 regarding substandard work.  It was brought to his attention by Mr Terzotis and involved work the plaintiff had undertaken on 14 April 2009.

264     Mr Holmes stated the incident that led to the plaintiff walking out of the premises at the close of his shift on the said date at 10.13pm was this written warning.  Mr Terzotis mentioned to Mr Holmes that the plaintiff’s work was substandard and he passed this on to the plaintiff. 

265     In an unsigned statement of 30 September 2009, Mr Holmes stated, from his observations, he found the plaintiff was an unreliable maintenance worker and under the supervision of Nick Crosbie, the plaintiff was presented with three written warnings relating to his poor work performance.  Mr Holmes detailed incidents in September 2008, November 2008 and January 2009 relating to the plaintiff’s poor work performance.

266     Mr Holmes also noted in February 2009, Peter Terzotis commenced with the company and took over the supervisory role from Nick Crosbie.

267     Mr Holmes noted Mr Terzotis’ reviews of the plaintiff’s work were critical.  He noted the written warning to the plaintiff on 15 April 2009 and the fact that the plaintiff and other staff were now being issued with specific job sheets to identify what was required on a shift to shift basis.

268     Mr Holmes then mentioned the progress of the plaintiff’s stress claim that was received on 29 April 2009 and then submitting a WorkCover claim in relation to his back on 9 September 2009.

269     At a meeting at the employer’s premises on 15 September 2009, the plaintiff failed to explain his prolonged absences and was informed of the termination of his employment.

270     A search of all incident reports and industry registers had not found any report of a back injury and no other employee had reported an alleged injury that was experienced by the plaintiff during his work in April 2009.

Lay affidavit 

271     Ms Laura Biagini, technical manager at Xchanging, swore an affidavit on 6 May 2014. 

272     Since initially accepting the plaintiff’s WorkCover claim, Xchanging and its solicitors obtained further medical reports, records and materials.

273     Ms Biagini noted clinical notes from Langton Medical Centre which disclosed in April, May, June and July 2009, the plaintiff attended due to bullying and harassment and stress, and on 24 July 2009, he attended for pain, which started in the neck and shoulders and right leg, and went to hospital and was given some medication.

274     Further, she mentioned the Dandenong Hospital notes reveal the plaintiff attended on 22 July 2009 for –

“… four weeks of ongoing back pain, worsening tonight, nil relief from Nurofen.  Has to see GP.  States intermittent thigh numbness.”

275     A further note of 23 July 2009 stated:

“One month of back pain gradually increasing.  No known injury.”

276     Ms Biagini deposed that she believed if Xchanging had been in receipt of the medical reports and records detailed, the plaintiff’s claim would not have been accepted.

Vocational evidence 

277     NES carried out a vocational assessment in November 2009. 

278     It was recommended that retraining be carried out and the plaintiff build on transferrable skills.  At that stage, it was noted, in the short term, the only recommendation that could be made was for the plaintiff to be provided with assistance to obtain work skills to allow him into a position that did not require heavy manual handling and where he was able to alternate his posture on a regular basis. 

279     It was noted at that stage, Dr Baldwin certified the plaintiff unfit for any work and a recent examination by Mr Kudelka outlined the plaintiff had no current work capacity and the prognosis was guarded for future resumption of physically demanding work imposing stresses on the lumbar spine. 

280     At 130 weeks, Ayres Management provided a vocational assessment report dated 13 August 2012. 

281     That report identified suitable employment options in order of priority, namely:

·        despatch clerk ($1,037)

·        inventory clerk ($905)

·        logistics clerk, order clerk ($752)

·        sales assistant ($665)

·        rental sales person ($797)

·        motor vehicle salesperson ($1,063).

The Defendant’s medal evidence

282     Dr Baldwin certified the plaintiff totally unfit for work from 9 January to 23 January 2009 on the basis of a stress disorder.  He was certified fit for normal duties on 24 January 2009 in that regard. 

283     The note from the Dandenong Hospital dated 22 July 2009 set out:

“Four weeks of ongoing back pain worsening tonight, nil relief from Nurofen.  Has not seen GP.  States intermittent thigh numbness.”

284     It was also noted:

“… One month of back pain gradually increasing.  No known injury.  Has been taking regular Panadol.  Has appointment with GP Friday.”

Medico-legal examiners

285     The plaintiff was assessed by a psychiatrist, Dr Das, in May 2009 but as the application was not pursued pursuant to ss(c), that report was not mentioned in submissions, save for a comment as to credit.

286     The plaintiff was examined by Mr Kudelka, orthopaedic surgeon, in October 2009 and more recently, in February 2012.

287     On the latter date, Mr Kudelka noted the plaintiff had a work related injury to the lumbar disc which had been treated surgically and he was now in a convalescent phase.  He believed his symptoms were consistent with the strain at work described.

288     Mr Kudelka thought the plaintiff had an aggravated age-related degenerative condition in the lumbar discs.

289     It was Mr Kudelka’s view that it was unlikely the plaintiff would return to work as a fitter and turner, a physically demanding job, in the remainder of the year.  While symptoms will improve, they are unlikely to disappear altogether.  He thought the plaintiff did not have a current work capacity.  He considered the plaintiff would be able return to alternative duties rather than factory work as a fitter and turner, but he would have to be vocationally assessed as to what his aptitudes were at work, and retraining would be required.  He suggested a review in September 2012.  He considered there was nothing but the plaintiff’s back injury affecting his ability to work.

290     Mr Peter Scott, orthopaedic surgeon, examined the plaintiff in June 2012.

291     Mr Scott thought the plaintiff suffered from chronic low back pain, discogenic disease, lumbosacral spine, anxiety and depression and development of what could be best described as a Chronic Pain Syndrome.  In the absence of any past history, he accepted the work was a major factor in the development of the plaintiff’s symptom complex following injury on the said date.

292     Mr Scott thought the plaintiff was fit for light work only in a part time capacity that did not require him to stand or sit for more than 30 minutes, perform repetitive bending or lifting of more than about 10 kilograms in a situation where he was not under any stress of harassment in the workplace.

293     Mr Scott thought the plaintiff would appear to have a minimum capacity for employment at that time.

294     Mr Scott thought the plaintiff suffered a chronic painful condition with possible pain amplification as a result of anxiety and depression and aggravation of degenerative disc disease.

295     Mr Scott thought the plaintiff required vocational retraining, in particular, into computers, before contemplating further work, probably clerical in nature.

296     Mr Scott provided a supplementary report, having been forwarded the 130-week vocational assessment.

297     Mr Scott confirmed that he thought the plaintiff was fit for light work only in a part time capacity which did not require him to stand or sit for more than half an hour or to perform any repetitive bending or lifting more than about 10 kilograms, working in a non stressful situation.

298     Mr Scott therefore considered the work as a despatch or inventory clerk or logistics or order clerk or sales assistant, rental sales person or motor vehicle sales person would be appropriate for the plaintiff, provided he could work in those activities with the restrictions as already indicated.  He suggested if the plaintiff was able to return to work on restricted duties, there should a review after three or four months.

299     Dr Robert Athey, consultant psychiatrist, examined the plaintiff in June 2012.

300     Dr Athey subsequently commented on the Ayres’ report and again saw the plaintiff in June 2013. 

301     As there is no longer a claim pursuant to ss(c), this report was not dealt with in any detail, save in terms of matters of credit, where certain matters of history were relied upon by counsel for the defendant in arguing the plaintiff portrayed to Dr Athey a more significant psychiatric condition to that described by him to Dr Young, his treating psychologist.

302     The plaintiff was examined on a number of occasions by Mr Roy Carey, orthopaedic surgeon.  The most recent attendance is 23 July 2013. 

303     Mr Carey noted examination findings were almost identical to November 2012.  The non organic signs of abnormal illness behaviour were still present.  There continued to be give way weakness on both sides – left worse than right – and associated with apparent pain, grimacing, breath holding and exclamations.

304     The only substantial alteration to the examination findings was a patch of numbness over the anterolateral right thigh but there was no sign of hypersensitivity/meralgia.  On the lower limb, the extent of numbness now involved the whole of the foot and the anterolateral calf, although the posterior calf had normal sensation.  The lateral thigh was densely numb and that now extended up into the umbilicus and below.

305     Mr Carey confirmed the plaintiff continued to suffer from chronic low back pain (now with more proximal radiation on occasion) and with bilateral lower limb symptoms, worse on the left, but in the absence of a specific radiculopathy.  He noted the pain, motor and non organic signs of abnormal illness behavior now would indicate the plaintiff had a Chronic Pain Syndrome.

306     Based solely on the plaintiff’s physical findings, Mr Carey considered the plaintiff would have a capacity for appropriate alternative duties on reduced hours to start with and likely after some retraining.

307     Having seen Dr Elder’s report and also the Ayres Management report, Mr Carey pointed out he was not an occupational physician, he was a spine surgeon.  On the basis of his own findings on history, examination and reading those reports and imaging, he thought the plaintiff had a work capacity as outlined by Dr Elder.  Mr Carey would be happy for the plaintiff to retrain in any appropriate duties as outlined by Dr Elder and in the Ayres report with a view to him re entering the workforce.

308     Having seen further investigations, Mr Carey was not convinced there was any pathology at L5-S1 other than that of age related incidental loss of signal.  There was no pathology on the films suggesting there was nerve root involvement or compromise warranting a diagnosis of radiculopathy.

309     Mr Carey disagreed with the views expressed by Mr Timms that the plaintiff was now developing a disc injury and bulging at the level below and at the level of L5-S1. Mr Carey concluded, in short, there were no specific pathologies resulting in back pain and bilateral sciatica and the presence of a pain syndrome made the relevance of any non specific imaging changes almost impossible to assess.

310     Mr Carey went into some detail about other issues that were not pursued by counsel in submissions, so I do not propose to deal with them, save that he said that if the plaintiff was experiencing significant pain in the back and leg at the time of the injury, of course he would expect his pain would be of significant magnitude for the plaintiff to have complained to Dr Baldwin prior to 24 July 2009, and if that complaint had been made, he would have expected it to be recorded in the doctor’s notes.

311     The plaintiff was examined on a number of occasions by Dr Elder, occupational physician, most recently having been seen in September 2013.

312     As on previous examination, there was a decreased range of motion in flexion and there was tenderness but no muscle spasm.  Power was normal with encouragement and that was consistent with the plaintiff’s ability to walk on his heels and toes.  Sensation was again diminished on the left side but did not fit with the dermatomal pattern.  There was normal sensation on the right lateral thigh.  Knee and ankle jerks, although diminished, were equal and responsive, again requiring reinforcement.  There was no wasting.

313     Dr Elder noted the plaintiff presented with mechanical low back pain without clinical evidence of radiculopathy which had been treated surgically.  He thought the radiology did not explain the plaintiff’s claimed symptoms and raised the possibility of some non organic factors. 

314     Dr Elder thought there was a functional component and there appeared to be a psychological reaction that today the plaintiff expressed especially about the loss of work.  Dr Elder did not think the plaintiff’s adverse psychological reaction was the main limiting factor to his return to work.

315     Dr Elder believed the plaintiff had the capacity for work and indeed, it was in his best physical and psychological interests to return to work.  He thought the plaintiff could not return to his previous job and remained of the view that the plaintiff has the full capacity for the type of work now being sought, namely spare parts interpreting, sales or a lighter in one of his friend’s workshops.

Employment documents

316     In a pre-employment medical assessment form completed by the plaintiff on 24 January 2006 for work with the employer, he answered “yes” and “no” to suffering from any back, neck or spinal injury and “yes” to having had an x‑ray or scan of his neck or back.  He denied having ever had an injury or disease resulting from work. 

317     In the application for employment signed by the plaintiff on 29 January 2007, he answered “no” to whether he currently suffered from any back condition or spinal disorder and gave details of an injury to his right hand suffered in a TAC accident. 

Warnings

318     There was a final written warning of 11 September 2008 relating to the damaged angle grinder.  This was signed by the plaintiff.

319     The plaintiff did not sign a warning of 26 November 2008 relating to leaving work early on 21 November 2008.  He signed an addendum to that written warning in which he was advised further disciplinary action would be taken if he did not adhere to the procedure.

320     There were also written warnings on 19 January 2009, 20 January 2009, 15 April 2009, not signed by the plaintiff.

Claim documentation

321     The plaintiff submitted two stress claims: the first dated 5 February 2009 and the second dated 29 April 2009.

322     The plaintiff submitted a Claim Form dated 9 September 2009 in which he set out he was ordered to put all steel away on racking and clean in steel shed and did this all night for seven hours.  He was injured when lifting steel off the ground to racking, bending up and down.  The injury occurred on the said date.  He reported it then to Marshall Holmes.

323     The employer injury claim report dated 10 September 2009 set out they had investigated the alleged injury and could find no evidence of it occurring.  They had questioned the supervisor on the afternoon shift at the time.  He did not have any injury reported to him.  The plaintiff had a dispute lodged with conciliation previously.

The 1996 injury

324     The plaintiff submitted a claim for his lower back in July 1996.  He attended Backs Management six times from 14 August to 26 August 1996.

325     The plaintiff was certified unfit for any duties.  There were certificates of incapacity from July 1996 for the following two months, at times for total incapacity and at other times for modified duties on restricted hours.

Overview

326     The first issue for consideration is whether the plaintiff suffered a compensable injury on the said date.

327     Counsel for the defendant submitted that the plaintiff made up the incident.[78]

[78]T160

328     The defendant maintained that there was no such injury on the said date as there was no complaint made by the plaintiff to the employer of back injury until the claim for compensation was lodged on 9 September 2009.

329     Further, the plaintiff did not mention any back problem to his treating general practitioner until late July 2009, some three months after the alleged incident, at a time when the plaintiff had ceased work because of a stress condition.  On numerous attendances until 24 July 2009, the plaintiff told Dr Baldwin about work related stress only and treatment was provided accordingly.

330     Reliance was also placed on affidavits from the plaintiff’s supervisors, Peter Terzotis, sworn 22 January 2014, and his statements of May and September 2009, and an affidavit of Marshall Holmes sworn 21 January 2014 and his statements of 18 May and 30 September 2009.  Mr Terzotis also was required for cross-examination.

331     Despite the late complaint of back injury, I am satisfied the plaintiff suffered a compensable injury in the incident on the said date.

332     Clearly, the plaintiff was required to do the task he claims caused his injury, with Mr Terzotis confirming in cross-examination Item 2 on the job sheet was the job the plaintiff was required to undertake.

333     I do not accept the plaintiff only put away smaller rods, having had a conversation with Mr Terzotis in which he told him he would not be able to lift the “big stuff”.

334     I accept that the plaintiff took in excess of six hours or most of his shift to complete the Item 2 task, matching “long with long, short with short and round with round” as he described.  The job would not have taken this long had the plaintiff been directed by Mr Terzotis to move a lesser number of items, as Mr Terzotis alleged.[79]

[79]T180

335     As Mr Terzotis deposed, the plaintiff never said the job was hard.  I do not accept, as Mr Terzotis explained in cross-examination, that the job was not hard, only ten per cent of it was difficult.

336     Whilst the plaintiff has always maintained he did not complain to Mr Terzotis following the incident, Mr Terzotis’ viva voce evidence in this regard was unclear, appearing to accept that a complaint was in fact made.  I was given the impression by Mr Terzotis that the complaint was quite proximate to the incident date.

337     Mr Terzotis’ evidence about returning to the worksite after the said date is also confusing.  In his September 2009 statement, he set out he returned to work on the said date on day shift and found all the small offcuts had been packed and the larger ones were on the floor.  He made no mention of attending the worksite with the plaintiff after the job was completed, although this was his viva voce evidence, albeit unclear as to when that visit occurred.  He could not have attended the worksite with the plaintiff the day after the incident as the plaintiff ceased work on the said date.[80]

[80]T180

338     As counsel for the plaintiff pointed out, there was a later job sheet which dealt with the larger items which the employer alleged the plaintiff was not required to move.[81]

[81]T180

339     I accept the plaintiff complained to Mr Holmes, as he set out in the Claim Form.  The conversation the night of the incident was in passing and quite casual and informal.  In those circumstances, it is not surprising Mr Holmes has no memory of it.[82] 

[82]T181

340     Taking into account all the evidence, I am satisfied the plaintiff suffered a compensable injury in the incident on the said date.

341     Further, Dr Baldwin had no trouble accepting the plaintiff’s complaint of work related back pain, although made three months after the alleged incident.[83]

[83]T182

342     Dr Baldwin noted, in the view of the problems the plaintiff had had with his previous stress claim, he had been reluctant to submit another for his back, but when there was clear-cut evidence on the CT scan, he decided to proceed with the claim and he gave the plaintiff appropriate certification.

343     As counsel for the plaintiff submitted, whilst the plaintiff bears the onus of establishing compensable injury, there was no alternative hypothesis proffered as to the cause of the gradual deterioration of the plaintiff’s back ultimately resulting in surgery in September 2011.  As the pre-employment medical indicated, the plaintiff got a clean bill of health when he started work with the employer in 2007.[84]  

[84]T182

344     I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[85] such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

[85][2006] VSCA 171

345     I do not accept that Ms Biagini’s affidavit, relied upon by the defendant, provides an adequate explanation for the initial acceptance of liability by the defendant for the plaintiff’s back claim.[86]

[86]Jovanovska v Betta Foods Pty Ltd & Anor (2009) VSCA 98

346     Ms Biagini is not a claims officer and she was not involved in the original decision.  Her role is described in her affidavit as technical officer.[87]

[87]T177

347     Clearly, the plaintiff was under some pressure at work in 2008209, having received a number of warnings for substandard performance.  As counsel for the plaintiff submitted, the plaintiff was “not too popular at his former employers”[88] and he was not getting on well with Mr Terzotis, as indicated by the warnings.[89]

[88]T177

[89]T179

348     The plaintiff had submitted claims for work related stress in February and April 2009, some months before the claim relating to his back was accepted.

349     The reference in Ms Biagini’s affidavit to recently becoming aware of the stress attendances following the incident does not adequately explain in those circumstances why there was some error made in admitting liability.

350     The plaintiff’s claim was accepted despite concerns by the defendant the plaintiff was not injured at work and the late complaint of injury, as the email chain between Mr Barnham, Mr Criddle and Dr Baldwin confirmed.

351     As counsel for the plaintiff submitted, this claim was not “rubber stamped”.  It had been investigated and in light of that information, it had been determined to accept the claim.[90]

[90]T178

352     In these circumstances, I do not accept the medical material referred to by Ms Biagini painted a “substantially different picture” as counsel for the defendant submitted.[91]

[91]T154

353     There was a compensable injury on the said date and the plaintiff had not seized on the last day he worked as counsel for the defendant submitted.[92]

[92]T163-164

Pain and suffering

354     As I have previously ruled, the Notice pursuant to s4, Part A of the WorkCover Claims Legal Costs Order in which the defendant set out it was satisfied the injury incurred on the said date to the plaintiff’s low back, satisfied the requirements of s134AB(38)(b)(i) but not the requirements of s134AB(38)(b)(ii), is not binding and could be withdrawn by the defendant.

355     Therefore, the issue of pain and suffering remains in dispute.

Credit

356     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[93]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[93](2010) 31 VR 1 at paragraph [12]

357     Counsel for the defendant submitted that I ought to have reservations about the plaintiff’s credit.[94]

[94]T154

358 However, I found the plaintiff to be generally a credible witness who was prepared to make appropriate concessions. He conceded there had been improvement in various tolerances since the Ayres’ report in 2012,[95] and he mentioned, only in passing, that he had recently been prescribed stronger painkilling medication in the form of Endone.[96]

[95]T184

[96]T185

359     There was nothing shown on the surveillance film that was inconsistent with the plaintiff’s description of his limitations.  Not surprisingly, the film taken after the back operation showed him moving more freely than in earlier film, with the plaintiff describing improvement after that procedure. 

360     I accept the plaintiff’s explanation that for the time he was shown squatting near the shelves at Bunnings, he was supporting himself with his hand, as was the case when he was shown leaning into his car.

361     Whilst there were inconsistencies between the history to Dr Young and Dr Athey of the plaintiff’s level of psychological upset and alcohol intake, this may be explained by the plaintiff’s embarrassment in this regard and the fluctuating nature of the his condition.[97]

[97]T183

362     Whilst the plaintiff complained of back pain in 1996 and gave limited history of this to any doctor and at times denied its occurrence in claim forms and employment documents, it was not put that this was a Petkovski v Galletti[98] situation, rather that the matter went to credit.[99]

[98][1994] 1 VR 436

[99]T166

363     However, I accept the plaintiff’s explanation that the 1996 injury was not significant and would not have been featured prominently in his mind when asked about any previous back problem.

364     Further, the plaintiff’s son’s evidence confirming his level of pain and restriction has not been challenged. 

365     While there is a suggestion of some functional component in the plaintiff’s presentation, there is no comment by any doctor that the plaintiff deliberately embellished or exaggerated his symptoms on examination.

366     There was no suggestion by counsel for the defendant that the plaintiff’s condition does not have a substantial organic basis.  Mention of functional overlay and Chronic Pain Syndrome was made in terms of a submission that the plaintiff exaggerated his symptoms.[100]

[100]T170

367     In Haden Engineering Pty Ltd v McKinnon,[101] Maxwell P noted that the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about his pain both in court and to doctors.

[101](supra) at paragraph [11]

368     The plaintiff’s evidence as to pain and suffering consequences was largely unchallenged.[102]

[102]T192

369     Counsel for the defendant submitted the level of symptomatology was perhaps at the mild to moderate level.[103]

[103]T173

370     I accept the plaintiff continues to suffer from persistent ongoing back pain, radiating into his left leg.  At times, the pain is so severe he needs to lie down and rest and take further medication.  His memory and concentration are adversely affected by his pain. 

371     Whilst there has been some improvement in his functional tolerances, the plaintiff continues to have difficulty with prolonged postures and activities involving lifting, twisting and bending.

372     Due his pain, the plaintiff is restricted in his daily activities and his involvement in household tasks is limited.

373     The plaintiff has undergone an extensive range of treatment.  Most significantly, he underwent discectomy in September 2011 which gave him limited relief, as did a cortisone injection the previous year.  I accept he is reluctant to undergo a further injection because of the lack of response to the first.

374     The plaintiff has also had physiotherapy treatment and gym and exercise routines which have resulted in little sustained improvement.

375     Since the incident, the plaintiff has required various types of pain-relieving medication including Oxycontin and, until recently, Panadeine Forte and Nurofen.  All these medications have caused significant side effects.  The plaintiff continues to take Panadeine and has been prescribed Endone in recent weeks.

376     In Kelso v Tatiara Meat Company Pty Ltd,[104] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.

[104][2007] VSCA 267 at paragraph [199]

377     The consensus of medical opinion is that as a result of his ongoing back pain and restriction, the plaintiff no longer has a capacity for his pre-injury duties/trade as a maintenance fitter or in unrestricted manual work.[105]

[105]T183

378     For a relatively uneducated manual worker, with no other qualifications, this interference with work is a serious consequence.

379     Further, I accept that as the plaintiff’s pain and restriction has continued for some time, without improvement, his spinal impairment is permanent.

Loss of earning capacity

380     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 – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

381     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. 

382     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

383     “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.

384     There was some dispute as to the “without injury” earnings figure.  Counsel for the plaintiff suggested a figure of $63,000, namely $58,000, the highest figure in the three years pre-injury plus CPI increases, as Ms Oliver reported.[106] Sixty per cent of that figure is $37,800 or $726 per week.

[106]Roleff v Chubb Insurance Co of Australia Ltd (2011) 31 VR 235

385     Counsel for the defendant submitted $58,000 was the appropriate figure, as there was no established pattern of increase in the three years before injury.[107]  Sixty per cent of that figure is $34,800 or $ $669 per week.

[107]T175

386     In my view, the smaller figure more fairly reflects the plaintiff’s “without injury” earnings.  It was highest figure in the three years pre-injury and there was no suggestion of ongoing increases, with earnings in the previous year in fact being lower than that figure.  In these circumstances, an allowance for CPI increases is not appropriate.

387     Whilst there is agreement amongst medical examiners that the plaintiff is unfit for his pre-injury employment, there are a range of views as to the plaintiff’s capacity for suitable employment.

388     Significantly, the plaintiff’s general practitioner, Dr Thornton, and treating neurosurgeon, Mr Timms, consider the plaintiff is totally unfit for all work.  This view was shared by vocational assessors, Ms Green, and HR consultant, Ms Oliver.

389     In September 2013, having read the Ayres’ report, Mr Fogarty did not believe the plaintiff was fit to return to any manual work and theoretically, he may be able to return to suitable employment not involving any manual labour, but presently, it did not appear to him that the plaintiff was capable of returning to any work in the near future. 

390     Dr Sutcliffe did not consider any of the jobs suggested by Ayres – despatch clerk, inventory clerk, logistics clerk, order clerk, sales assistant, rental salesperson and motor vehicle salesperson – to be suitable for the plaintiff.  In her view, his capacity at best was part time after extensive retraining, working four hours, three days a week.

391     In June 2012, Mr Scott thought the plaintiff was fit for light work only in a part time capacity that did not require him to stand or sit for more than 30 minutes or perform repetitive bending or lifting more than about 10 kilograms in a situation where he was not under any stress of harassment in the workplace.  He then thought the plaintiff would appear to have a minimum capacity for employment. 

392     In February 2012, Mr Kudelka did not consider the plaintiff had a current work capacity.  He simply stated the plaintiff would be able return to alternative duties after a vocational assessment

393     Other medical practitioners considered the plaintiff has a capacity for suitable employment on a full time basis.

394     Dr Elder thought the plaintiff had the full capacity for the type of work now being sought, namely spare parts interpreting, sales or a lighter job in one of his friend’s workshops.  However, Dr Elder had not been provided with the Ayres’ report and did not provide any explanation of his views as to the plaintiff’s ability to do these jobs.[108]

[108]T186

395     Mr Carey would be happy for the plaintiff to retrain in any appropriate duties, as outlined by Dr Elder and in the Ayres’ report, with a view to him re-entering the workforce. The Ayres’ report did not, however, describe specific jobs, just the ANZSCO categories/statistical classifications.[109]

[109]T186

396     I prefer the view of Mr Timms, who has treated the plaintiff throughout, and also his current treating general practitioner, Dr Thornton, who continues to see him on a regular basis, that the plaintiff does not have a capacity for suitable employment.

397     I accept that with his level of pain and restriction, the plaintiff would be unable to do the jobs suggested for more than a few hours each day.  He would not be a reliable employee, as some days his pain is so bad he has to lie down.  On such occasions, he requires additional medication which would affect his work performance and concentration. 

398     From what the plaintiff had seen, he did not think he could work in a retail job like Bunnings, as there was prolonged standing, bending, twisting and lifting involved and that would be physically beyond him. 

399     Whilst he had been looking for work in car sales and spare parts, the plaintiff could not see himself working in these jobs, as they required a lot of stocking and restocking.  He would have difficulty getting in and out of vehicles working in a caryard.

400     The plaintiff has only basic computer skills, having undertaken a short course.  He would have problems with further study sitting at a desk or working in a desk job.  I accept the plaintiff would still have difficulty even if he was permitted to sit and stand when he required.

401     Even if he was able to work twelve hours per week, as Dr Sutcliffe suggested may be the case with retraining, the plaintiff would still suffer the requisite loss of earning capacity.

402     Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of 40 per cent, not having the capacity to earn in excess of $669 per week.

403     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

404     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

405 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[110] and Advanced Wire & Cable Pty Ltd v Abdulle.[111]

[110][2009] VSC 454 at paragraph 147

[111][2009] VSCA 170

406     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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