Merkoski v Pacific Dunlop Tyres Pty Ltd
[2010] VCC 168
•12 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03170
| ILAN MERKOSKI | Plaintiff |
| v | |
| PACIFIC DUNLOP TYRES PTY LTD / GOODYEAR TYRES PTY LTD | Defendant |
| (trading as SOUTH PACIFIC TYRES) |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 3 March 2010 |
| DATE OF JUDGMENT: | 12 March 2010 |
| CASE MAY BE CITED AS: | Merkoski v Pacific Dunlop Tyres Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0168 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC and | GPZ Legal |
| Mr M Gray | ||
| For the Defendant | Mr C E Hangay | Wisewould Mahony |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 1 February 2005 (“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 s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The defendant relied upon an affidavit sworn by Frank Francalanza in July 2009. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged forty seven, having been born on 21 June 1962 in Yugoslavia. He immigrated to Australia at the age of ten in 1972. He is married with three adult children.
7 The plaintiff completed schooling to Year 10. He is dyslexic and has the reading and writing skills of an eight year old.
8 After leaving school, the plaintiff obtained trade qualifications and worked as a shoemaker between 1978 and 1986. He was then employed for two years as a store person with Kendon Chemicals.
9 In 1987, the plaintiff worked as a delivery driver with a bakery for eight months, and in the following year he obtained employment as a store person with the defendant, for whom he worked for the next nineteen years.
10 The plaintiff worked for the defendant in the store area and his duties mainly involved manual handling of tyres, including car, truck and tractor tyres, to make up customer orders. Most of his work required heavy manual handling and regular lifting of up to 44.5 kilograms, and frequent lifting and/or carrying of objects weighing up to 22.7 kilograms.
11 Eighty per cent of the plaintiff’s work involved stacking tyres of varying weights and for the remainder he drove a forklift. Over an eight hour shift he may have shifted twenty to thirty tonnes of tyres.
12 The plaintiff was also employed as a leading hand and was in charge of a shift. There were four leading hands who supervised and allocated work to twenty five to thirty workers.
13 Prior to the said date, the plaintiff was generally in good health. However, he had had some low back pain from about 1994 relating to the heavy nature of his labouring duties with the defendant, but he could recall having very little time off in relation to any back injury before 2001. From time to time he was given modified duties, and he received regular treatment from the defendant company’s nurse.
14 In the late 1990s or early 2000, the plaintiff injured his back at work. He underwent an x-ray, the results of which were normal. In July 2001, he injured his right shoulder. In August 2003, he suffered low back pain whilst dismantling pallets. An x-ray of his back in October 2003 was normal. The plaintiff also suffered injury to his right forearm in April 2004.
15 Following these various injuries, the plaintiff was able to return to fulltime unrestricted employment.
16 On the said date at about 12.30 am whilst handling tyres in the storage area, the plaintiff had to climb onto the top of a stack of tyres so he could remove the top tyres. As he lifted one of the top tyres he fell off the stack and suffered injury to his lower back, left hip, and left buttock (“the incident”).
17 The plaintiff continued working and he reported the incident. The following day, an incident report form was completed which set out the plaintiff “suffered left hip injury whilst unloading import tyres in container, standing on laced tyres to get on top of next row. As he was lifting the top tyre, turned and stumbled and twisted and fell on stack”.
18 John Torre, an employee of the defendant, put the plaintiff on light duties because of his back pain. The plaintiff took seven days off work on sick leave because of his back condition in February 2005.
19 Until November 2005, the defendant changed the plaintiff from normal duties to light duties, depending on his back condition. The plaintiff did not go on WorkCover as John Torre suggested he would just provide the plaintiff with light duties so he could stay at work.
20 Before November 2005, the plaintiff had about other ten or so days of sick leave because of his back pain. He also took annual leave on a number of occasions between February 2005 and November 2005 due to his back condition.
21 Restrictions set out in medical certificates from November 2005 until September 2006 included avoiding repetitive lifting over 8 kilograms, repetitive bending, and squatting. Effectively those restrictions meant the plaintiff could not perform heavy labouring duties at work, and he did light duties that were available.
22 After the incident, the plaintiff was only able to shift one to two tonnes of tyres in an eight hour shift. He continued to work as a leading hand before he was made redundant in September 2006. He was also engaged in training potential TNT employees - a job he enjoyed.
23 In November 2005, the plaintiff’s back pain became so bad he could no longer cope and he attended Dr Brown, the defendant’s doctor.
24 On examination on 10 November 2005, the plaintiff told Dr Brown of the incident. The plaintiff was sent for an x-ray and an ultrasound. He saw Dr Brown a second time on 18 November 2005, after which he was referred to Mr McCormack, physiotherapist.
25 Mr McCormack had previously treated the plaintiff in 2001 in relation to his back condition and he continued to treat the plaintiff throughout that year and also on a number of occasions in 2003. Following the incident, Mr McCormack treated the plaintiff from 7 December 2005 to 22 December 2005.
26 The plaintiff deposed that he ceased physiotherapy and hydrotherapy because the relief he got from it was only transient and he found it was of little long term use. In cross-examination, the plaintiff said that physiotherapy in fact aggravated his back condition.
27 The plaintiff believed he also saw Dr Thia of the Northcote Medical Group shortly after the incident but he cannot recall when.
28 The plaintiff attended Dr Branson, his general practitioner, on 13 December 2005, and continues under his care. The plaintiff underwent various investigations in February and March 2006, and he was referred by Dr Branson to Dr Mitchell, musculo skeletal physician.
29 The plaintiff was also referred by Dr Branson to Mr Cunningham, orthopaedic surgeon, in February 2006. The plaintiff saw Mr Cunningham on two or three occasions. The plaintiff was advised by him that his current job was unsuitable and that he should look at a lighter job. Mr Cunningham did not think surgery would be of assistance.
30 By letter dated 21 February 2006, the defendant advised the plaintiff of its intention to outsource its warehousing operations nationally to TNT Logistics effective from 1 May 2006.
31 On 1 September 2006, the plaintiff’s employment with the defendant was terminated, as was the employment of all other employees in the warehouse.
32 After being retrenched, the plaintiff was offered work in a yard cleaning cars from 8 November 2007, initially on a full time basis, until 7 January 2008, when he left that work after a falling out with his employer. He worked whilst in pain and earned about $590 per week and $4,354 in total for this period.
33 In cross-examination, the plaintiff explained that he was basically just washing the exterior of cars. He was required to do some bending, but not squatting, and on average it took him five to ten minutes to clean a car.
34 In re-examination, the plaintiff explained that he did not have to really do much bending whilst cleaning the cars. He did not necessarily have to bend under load, holding something or carrying something.
35 The plaintiff was cross-examined about a number of histories he had given to doctors about not having worked since he had been made redundant. He agreed that he told this to every doctor but he explained that when he said he had not worked, he meant he had not worked full time.
36 The redundancy package the plaintiff received was substantial, and precluded him from obtaining weekly payments until 8 February 2008, at which time he made an application for weekly payments. The plaintiff continued to receive payments, which were terminated and then reinstated at various times, until 23 January 2009.
37 The plaintiff has not been provided with any rehabilitation or a multidisciplinary pain management program or with job seeking or retraining. He has been forced to adapt to his condition and seek out his own modified form of work. Dr Branson continues to certify the plaintiff on the same basis as was the case prior to retrenchment.
38 The plaintiff registered an ABN about four or five years ago. He did not want to set up a handyman business at that stage but he had to refinance his house, and to do so he had to show he had the capacity to earn income.
39 The plaintiff most likely started painting work in April 2009. At that point he was not getting any money. He had applied for Centrelink, but he did not qualify. He could not get a job, and with his restrictions he did not think he would be able to get full time work.
40 The only way the plaintiff could make any money was to be self-employed. He could then work the hours he wanted and he could pick and choose what kind of work he would do.
41 The plaintiff has done three painting jobs, two of which were paid jobs. He painted the window frames on a lady’s house on two occasions in 2009. He was paid $850 in total for that job but he did not complete the job “in the one hit” because she could not afford to pay him.
42 The plaintiff also painted a chiropractor’s rooms. He started this job in Cup week 2009. He worked about six or seven hours a day, working on Friday, Saturday, and Sunday, when the clinic was closed. The job took him “right just before Christmas”.
43 The plaintiff deposed that he was paid $3,800 or $750 per week for four weeks’ work. He worked between eighteen and twenty one hours per week on this job and the cost of materials was $800.
44 The plaintiff’s business is known as “Ilan handyman”. The plaintiff does not advertise. He owns all his handyman tools. He used a roller to paint the walls and the ceiling and he used an aluminium ladder which was not high, nor was it heavy to carry.
45 The plaintiff also helped his father-in-law with some painting, but did not get paid for that work.
46 In cross-examination, the plaintiff explained that he earned $25 an hour as a housepainter, and said that “it would be great” if he was earning $35 per hour. He has tax invoices and other documents at home relating to this work which he will use to do his tax return later this year.
47 The plaintiff would not be able to do this painting work full time. He believes he could adequately cope indefinitely with twenty hours per week of this type of work, with the necessary restrictions to avoid aggravation of his back pain. He would be unable to return to work involving repeated bending, climbing or lifting. He believes he would need to be able to pick and choose the type of work he could do, and select the tasks he could do, so as not to aggravate his back – a situation where he would need to be self-employed.
48 The plaintiff has not done any painting since the end of 2009. In cross- examination, he agreed he was looking for work, including warehousing and doing forklift driving. He does not believe that he could carry out the various jobs that have been suggested on a full time basis, having had problems doing limited painting work.
49 The plaintiff explained that he thought he could only work twenty hours per week because after three days constant work painting, working above his head, and feeling the strain, it became uncomfortable on his lower back, and when he started bending and twisting the pain started to come in. He had not tried working for longer hours. He would love to get a full time job and not be “in here”.
50 The plaintiff does not advertise his business because he really does not want to go into doing that sort of work, as it is a “bit too harsh” – a bit too heavy on his back, and his hip starts to play up doing that work constantly on his knees doing skirting. He would rather be doing his old job with the defendant.
51 The plaintiff deposed that had he not suffered injury, he could have remained in employment with the defendant. He could also have obtained employment performing heavy manual labouring work with some other employer working until retirement age.
52 In cross-examination however, the plaintiff said that he would have kept working with the defendant if he had not been made redundant. He would have been doing alternative duties, as there were no light duties, and he could still be doing these duties full time.
53 The plaintiff continues to suffer from fluctuating low back pain which is present all the time. If he walks or stands for too long, or carries any substantial weight, his symptoms are aggravated. His standing is limited to about an hour and his walking is limited to about twenty minutes. He is unable to lift more than about eight kilograms. He is unable to work in a normal rapid manner, and it takes him a long time performing painting tasks.
54 The plaintiff’s ability to repeatedly bend at the waist is restricted, as is his ability to twist. He is able to drive for thirty to forty five minutes, but if he drives for longer his back stiffens up and he needs to stop, rest and stretch.
55 The plaintiff tends to rest regularly, and avoids activities which might aggravate his back pain. As a result, he has become less physically active.
56 The plaintiff continues to suffer from disturbed sleep. He has problems getting off to sleep at night, and can spend up to two hours trying to fall asleep. He is then woken at 4 or 5 am by back pain, and during the following day he feels fatigued, angry and irritable.
57 The plaintiff’s groin pain has eased off because he has not been doing any type of strenuous lifting or work.
58 Since the incident, the plaintiff has ceased jogging completely. He used to swim before the incident but he has stopped swimming because of pain in his lower back, having tried hydrotherapy treatment some time ago.
59 Prior to the incident, the plaintiff used to love doing a workout to keep fit. He was not a member, but went to a local gym, Five Star Gym in Thomastown, once or twice a week for a light workout. He has not attended the gym since the incident.
60 The plaintiff has not done any paid lawn mowing work. Sometimes he has mowed his own lawns but often he “just lets it go”, mowing maybe every six to eight weeks, most recently having mowed the lawn last week. He also uses a whipper snipper to mow the lawn, as it is easier to use than a lawn mower. At times his son does the mowing.
61 That is basically all the work the plaintiff does around the house. He has got to do something to keep himself and his mind occupied, otherwise he is just going to “end up like a vegetable” - explaining that - “You just can’t sit around and do nothing and dwell on things. You’ve got to move around”.
62 The plaintiff is able to reach into a car to get things, but he cannot lift heavy things. He could slide his ladder out of the back of a van. He agreed he could climb on his ladder to do painting work.
63 The plaintiff is no longer able to walk from Reservoir to his mother’s place in Preston, an activity he previously enjoyed. His walking is now limited mainly to a short trip to the local shop. He walks slowly, with a bit of a left sided limp, but he does not always limp.
64 The plaintiff continues to see his general practitioner, Dr Branson, on a monthly basis, and he prescribes the plaintiff anti-inflammatories, anti- depressants, and Panamax for pain.
65 From 1 July 2006 until 2 September 2006 when the plaintiff was retrenched, he earned $13,352. He earned a gross weekly income of $1,483 for this nine- week period, which equates to a gross income for the year of $77,145.
66 Whilst employed by the defendant, the plaintiff earned the following gross income for the financial years ending 2001-2 through to 2005-6 :
• 2002: $55,401.00 • 2003: $53,881.00 • 2004: $60,489.00 • 2005: $71,589.00 • 2006: $73,822.00. 67 In cross-examination, the plaintiff agreed that between 2002 and 2004 he had earned consistently about $55,000 a year, and the level of his income depended upon the amount of overtime worked.
68 In the following year, he earned about $70,000 because there was compulsory overtime he had to do as leading hand. The plaintiff agreed that in 2006 he earned about $72,000, due largely to overtime and also his work training TNT staff.
The Plaintiff’s Medical Evidence
69 The plaintiff initially attended physiotherapist, Mr McCormack, for treatment for his thoracic and lumbar spinal pain in 2001, and later in September 2003.
70 The plaintiff attended Mr McCormack on four occasions during December 2005 for treatment of his back condition. On a medical certificate dated 16 December 2005, he described the plaintiff’s injury as “lumbosacral strain recurrence”.
71 The plaintiff was seen at the Northern Industrial Clinic (“the Clinic”) by various doctors, mainly Dr Branson, from September 2003.
72 Dr Branson’s first certificate of 13 September 2005 described lumbar strain and left hip injury, and provided for restrictions as to squatting and avoiding repetitive lifting over eight kilograms. Avoiding repetitive bending was later added to the certificate.
73 The plaintiff initially presented with a problem of chronic left flank and lumbar pain associated with lifting and related to his work as a forklift driver. Physical examination showed mild restriction of flexion and extension, no objective changes in the leg, and the plaintiff was given Vioxx.
74 The plaintiff was reviewed on 13 December 2005 by Dr Branson with a problem of back pain, left buttock pain and left posterior side pain present since the incident.
75 The plaintiff was reviewed at the Clinic in January, March, July, November and December 2006, when he was reviewed by Dr Branson. The plaintiff also attended in January, February, March, April, May and July 2007, with persisting low back pain.
76 On 8 August 2007, Mr Flaim reviewed the plaintiff at the Clinic. At that time the plaintiff had not worked for a year, and he had been applying for work without success. Mr Flaim arranged for the appropriate certification.
77 Mr Flaim concluded there had been evidence of lumbar and left hip injury, to which employment had been a contributing factor. The plaintiff considered himself fit for alternative duties. Mr Flaim noted the plaintiff’s prognosis depended on the exact pathology, which as yet had not been imaged.
78 Dr Branson last reported in June 2009. In his view, the plaintiff suffered from lower back and left hip pain, and the current diagnosis was lumbosacral disc degeneration. He thought the plaintiff’s injuries were chronic and ongoing, and his symptoms were continuous.
79 Dr Branson noted the plaintiff continued to experience lower back pain and left sided hip pain, and was currently being prescribed Celebrex once a day. The plaintiff had attended the Clinic regularly in order to obtain repeat medication and updated medical certificates regarding his capacity for work. Dr Branson currently certifies the plaintiff as fit for work with “no squatting, maximum lifting of eight kilograms, and avoiding repetitive bending”.
80 The plaintiff was reviewed by Mr Flaim on 26 November 2009. On examination, Mr Flaim noted the plaintiff was forthright and cooperative, and he walked without a limp. The plaintiff’s posture was normal in the lumbosacral spine, and movements were almost full - restricted by one quarter of the normal range. There were no abnormal neurological findings in the legs, and local examination was non-contributory. Left hip movements were within normal limits, with no sign at that stage of osteoarthritis of the left hip.
81 Mr Flaim, having carried out an AMA assessment, concluded the plaintiff presented with chronic back and left hip pain following the incident. The physical examination showed restricted movement, but no objective features either in the hip or in the back, and Mr Flaim noted investigations had demonstrated minor changes in the plaintiff’s left hip and localised degenerative change in the lumbosacral spine.
82 Based on the history, physical examination and investigations, Mr Flaim concluded the major injury appeared to have involved the lumbosacral spine, an injury which had stabilised.
83 Mr Flaim concluded the plaintiff was clearly fit for employment, and was looking for work as a house painter. However, the plaintiff told Mr Flaim he could not work in a normal rapid manner, and estimated it took him three times the normal time to complete the painting of a house.
84 In Mr Flaim’s view, the plaintiff was able to work in situations which excluded repeated bending, heavy lifting, and jolting and jarring of the spine, such as would occur with prolonged forklift driving.
85 Dr Thia of the Northcote Medical Group first saw the plaintiff in August 2005. On examination, the plaintiff complained of suffering from headaches on and off for six months. He was stressed at work because he was unable to get along with a co-worker. He was not sleeping at night.
86 Clinically there were no abnormal findings, and Dr Thia offered to investigate the plaintiff’s complaints with a CT scan of the brain.
87 On re-examination on 6 December 2005, the plaintiff gave a history of having fallen at work after losing his balance while standing on a pile of tyres. The plaintiff complained of pain in the left sacroiliac joint, radiating down to the left knee cap, which had become more persistent for the previous four to five weeks prior to the visit.
88 On examination, the plaintiff was tender in the sacral and lower lumbar region. Forward flexion was to eighty to ninety degrees, but painful on rotation. Dr Thia noted the plaintiff did not attend for a CT scan of his back, and he did not see Dr Thia again.
89 Mr Cunningham, orthopaedic surgeon, examined the plaintiff on referral from Dr Branson on 6 February 2006. The plaintiff told him about suffering injury in the incident when he lost his balance standing on a row of tyres.
90 On examination, the plaintiff complained of constant aching in the region of the left hip, increased with prolonged standing and walking, which eased with rest. He also complained of aching throughout the length of his lumbar spine.
91 On examination, extension reproduced pain, as did lateral flexion. There was pain on palpation of the facet joints within the lumbar spine on the left side, and there was no hip abnormality on examination.
92 Mr Cunningham felt that the plaintiff had disrupted his L5-S1 intervertebral disc, and may well have had other problems arising from the facet joints of his lumbar spine.
93 Mr Cunningham noted that investigations showed disc degeneration with generalised disc bulge and annular fissure, but without focal protrusion. He believed the plaintiff’s problem was a disruption of the L5-S1 intervertebral disc, which he thought was certainly consistent with the incident.
94 The plaintiff was last seen on 13 July 2006, when Mr Cunningham noted there had been a general improvement in the plaintiff’s discomfort, but he had not been able to return to his previous high workload which involved him shifting twenty to thirty tonnes of tyres in eight hours, whereas he was only now able to move one to two tonnes.
95 The plaintiff was advised at that stage that his work was probably unsuitable, and he should look for a more sedentary occupation. He was also advised he should cease smoking and should work at physiotherapy, increasing the strength of his abdominal and paraspinal muscles to stabilise his back. Mr Cunningham did not consider the plaintiff’s condition to be operable, and he noted that at that stage he would dissuade him from any operative intervention.
96 Dr Bruce Mitchell, musculo skeletal physician, saw the plaintiff once on 17 August 2006 on referral from Dr Branson. At that time, the plaintiff presented with eighteen months of pain in his central low back and left buttock, with some lateral hip pain and somatic referred pain into his groin following the incident.
97 On examination, the plaintiff had limited lumbar flexion and extension, with back pain limiting these movements. Lateral flexion was also restricted. There was no evidence of any radiculopathy, nor of any nerve root entrapment.
98 Dr Mitchell noted the MRI of the lumbar spine showed desiccation of the L5-S1 disc with a left posterolateral annular fissure at L5-S1.
99 Dr Mitchell commented that the plaintiff had had extensive differential diagnoses and signs of multiple different pathologies, and it was possible that he had more than one pain generator going on. In those circumstances, Dr Mitchell thought that consideration should be given to the plaintiff’s sacroiliac joint and facet joint first, and if blocking them made a substantial difference to his pain, he thought then there was a fair chance that radio- frequency neurotomy may be all that was needed. If, however, they were negative or treating these joints did not result in pain control, he thought the plaintiff would require an examination of his left hip under local anaesthetic with a view to arthroscopy. He noted he was writing to WorkCover for permission to proceed with the blocks.
100 Dr Ebringer, rheumatologist, examined the plaintiff on 22 January 2007 on referral from Dr Branson.
101 Dr Ebringer noted musculoskeletal examination demonstrated a normal range of cervical and thoracolumbar movements. The positive findings on examination were of tenderness over the sacroiliac joint, but also tenderness in both buttocks and along the pelvic crest. In his view, the features appeared to be more of a chronic non-specific low back pain or chronic pain syndrome.
102 Dr Ebringer felt the plaintiff had low back pain of a mechanical nature apparently caused by the incident. He noted the persistence of symptoms, however, was of concern, and the fact that the plaintiff had ongoing complaints made Dr Ebringer feel the plaintiff’s chances of a good recovery were low. He commenced the plaintiff on a trial of anti-inflammatory medication plus analgesics, and also a low dose of Amitriptyline at night to help him sleep.
103 There were subsequent reviews on 28 May 2007 and 11 December 2007. Initially there was no improvement of pain, but on the last review the plaintiff told Dr Ebringer that his pain has eased up partially, with the use of eight Paracetamol tablets a day, plus Celebrex. The plaintiff told him he was still having persisting chronic low back pain which essentially had minimally improved in the past six months. The plaintiff was working on lighter duties, not full time, washing cars and trucks for between four to eight hours a day.
104 In Dr Ebringer’s view, the cause of the plaintiff’s back pain was not clear. He noted the plaintiff had narrowing of the lumbosacral disc, and it was probable that the plaintiff had an internal derangement in the lumbosacral area. He noted the objective findings were out of proportion to the severity of the plaintiff’s low back symptoms. His impression, however, was that the plaintiff’s complaints were genuine, and he did not feel he was exaggerating those complaints.
105 In Dr Ebringer’s opinion, it was reasonable to conclude that the plaintiff’s back symptoms were caused or contributed to by the incident, and his long term prognosis was guarded.
106 Dr Ebringer considered the plaintiff was capable of carrying out full time light work duties that do not require continual bending, stooping or lifting, and he would not be fit to carry out any physical activity such as lifting tyres.
107 Dr Hjorth saw the plaintiff on 19 June 2008, and more recently in December 2009. On recent examination, the plaintiff told Dr Hjorth that he had constant low back pain and pain in the left hip.
108 On examination of the lumbar spine there was some restriction of mobility, and the plaintiff’s legs were essentially normal. There was no muscle wasting or weakness, and no reflex change. Light touch was slightly reduced over the left leg, but in a vague kind of distribution.
109 In Dr Hjorth’s view, the major identifiable problem was a low back injury for which the incident was largely responsible. The plaintiff still had left hip pain, but there was no restriction of mobility.
110 Dr Hjorth did not think the plaintiff could return to his pre-injury work, but as a self-employed handyman it was possible the plaintiff might be able to pick the tasks he could do without aggravating his back.
111 The plaintiff has been examined by Mr Flanc, vascular and general surgeon, on two occasions, initially on 14 August 2007, and more recently on 1 December 2009.
112 The plaintiff advised on re-examination that his condition had not changed significantly, and that he had remained unemployed until six to eight weeks ago when he started working for himself as a handyman doing painting and carpentry. His lower back pain had not changed, and was still much more severe than it was before the said date.
113 On examination, there was very slight tenderness at the lumbosacral junction, and there was no deformity. Lateral flexion was to thirty degrees each side, with some pain at the extremes. Extension was almost normal, and flexion was easily performed. There was no neurological abnormality in the plaintiff’s left leg.
114 Mr Flanc’s opinion remained unchanged. He still considered that the gradual development of low back pain was consistent with an aggravation of disc degeneration at the L5-S1 level, in the sense that it had become symptomatic. He thought there was a substantial aggravation of the plaintiff’s condition as a result of the incident, which increased his back pain, and this continued to be a significant problem.
115 In Mr Flanc’s view, the plaintiff’s work with the defendant resulted in an aggravation of his pre-existing disc degeneration of the lumbosacral spine which became symptomatic, and a substantial aggravation occurred as a result of the incident.
116 Mr Flanc thought the plaintiff’s condition had stabilised, and it was likely he would be left with persistent low back pain and discomfort over the outer part of the left hip.
117 Mr Flanc considered the plaintiff would never be fit to return to his pre injury duties. Specifically, the plaintiff would not be able to return to work involving repeated bending, climbing, or heavy lifting.
118 Mr Flanc noted that the plaintiff had managed his recent handyman/painting work quite well, because he was able to avoid situations which would aggravate his low back pain. In Mr Flanc’s opinion, the plaintiff should be able to continue working in this manner indefinitely.
119 Mr Flanc considered the guidelines for such a job would be that the plaintiff could do relatively light part time work within the restrictions required, and he would probably be able to cope with up to twenty hours per week.
120 Mr Flanc agreed with Mr Radley that the plaintiff had the capacity to work as a car park attendant or ticket seller or assembler, providing he could avoid prolonged periods of sitting, standing, bending or heavy lifting. He had some doubts whether the plaintiff would be able to cope with work as a school bus driver or driving instructor because of poor postural tolerance.
Vocational Reports
121 Mr Bill Radley, psychologist, having interviewed the plaintiff, prepared a vocational assessment on 18 January 2008.
122 The plaintiff told Mr Radley he was hoping to be able to get back to some type of work in the future, possibly as a store person, but that work would need to be light. He said he did not want to do delivery work, but he was good as a handyman, and possibly could do that type of work.
123 Based on the medical evidence, Mr Radley’s employment assessment was that the plaintiff had no work capacity to return to his pre-injury employment or to similar employment in any capacity, and he was not likely to have any capacity for such employment in the foreseeable future.
124 He concluded the plaintiff may have a capacity to return to full time employment in some alternative occupation such as assembler, car park attendant, fire extinguisher servicer or ticket seller. Further, he thought the plaintiff did have some potential for occupational retraining, following which he would have a capacity for a wider range of full time or part time employment of a more sedentary nature in work such as a school bus driver, driving instructor, locksmith, service station attendant, car rental attendant, radio dispatcher, and occupational health and safety officer.
125 A further vocational assessment report was conducted by Mr Radley in January 2010, after he again interviewed the plaintiff. Essentially Mr Radley repeated his earlier views as to the plaintiff’s suitability for various sedentary light jobs.
126 Mr Radley thought the plaintiff had capacity for employment as an assembler, car park attendant, ticket seller, painter or car detailer, and with retraining would have a capacity for sedentary work such as a locksmith, service station attendant, car rental attendant or radio dispatch.
127 Mr Radley recommended that the plaintiff enrol in an appropriate vocationally directed TAFE course, that he be referred to a psychologist skilled in the treatment of mood disorders, and study/career planning, that he be referred to a multidisciplinary pain management program, and that he be referred to a rehabilitation provider for vocational assessment, including job seeking skills and possible job placement.
Loss of Earnings
128 Gary Allan, accountant, provided a forensic accountant’s report dated 25 January 2010.
129 Mr Allan concluded, if not for his injury, the plaintiff was capable of earning gross income from personal exertion of about $83,476 per annum at the date three years after the date of injury as a storeman, including the financial benefit of employer’s superannuation contribution of $6,028.
130 Mr Allan based this assessment upon projected earnings increases set down in the South Pacific Tyres National Union of Workers Certified Agreement 2003 and subsequent wage adjustments made by the Australian Fair Pay Commission.
131 Mr Allan concluded that the range of jobs set out in Mr Radley’s report typically fell within the range of $33,000 to $41,000, including superannuation.
Investigations
132 Dr Brown organised an x-ray and ultrasound of the plaintiff’s left hip on 16 November 2005. It was concluded the examination was within normal limits.
133 Mr Cunningham organised a bone scan on 8 February 2006. There was no evidence of fracture or primary active bony pathology. Although uptake appeared symmetrically increased within the sacroiliac joints, there was also prominent uptake in other pelvic structures, and it was noted that the findings may be all normal variance. The plain films of the sacroiliac joints were all normal.
134 Mr Cunningham organised an x-ray of the lumbar spine on 8 February 2006 on which, despite the clinical history, no plain film abnormality was seen.
135 Mr Cunningham organised an MRI scan of the lumbar spine on 2 March 2006. It was concluded there was single level L5-S1 disc degeneration with generalised disc bulge and annular fissure, but without focal disc protrusion.
136 Mr Cunningham organised a left hip arthrogram on 2 March 2006. It was concluded there were small anterosuperior labral tears seen without definite chondral abnormality. There was minimal cortical irregularity with subchondral cystic change in the anterior femoral head and neck junction. The femoral head remained spherical, and there was no definite abnormality in the subchondral marrow of the anterosuperior acetabular labrum. It was noted those appearances were consistent with minor impingement.
The Defendant’s Medical Evidence
137 Dr Brown, occupational physician, saw the plaintiff on 29 August 2003 when he presented with a previous history of back pain. At that stage Dr Brown thought the plaintiff was fit to make a graduated return to his usual tasks over a couple of weeks, and certified him accordingly.
138 The plaintiff next attended Dr Brown on 10 November 2005, when he gave a history of a fall onto tyres in a container in January 2005. The plaintiff told Dr Brown he suffered left hip pain immediately and he had a few days off, and he believed he had pulled a muscle, with his symptoms resolving over a couple of weeks.
139 The plaintiff told Dr Brown he had suffered about ten further recurrences requiring time off work, and that he had discomfort getting on and off a forklift and when unloading tyres from containers.
140 Physical examination showed tenderness over the left hip, and pain on resisted abduction and adduction. There was no local swelling or pain on external rotation, and straight leg raising was unrestricted. Dr Brown tentatively diagnosed tendinopathy and bursitis of the hip joint, and he ordered radiological investigation. He provided the plaintiff with a certificate describing his injury as left hip pain.
141 On examination on 18 November 2005, the plaintiff complained of continuing pain on extended sitting, particularly on the left. There was a good range of movement of the back and hip with some discomfort at the extremes.
142 At that stage Dr Brown concluded the plaintiff was suffering from mild soft tissue symptoms, and referred him for physiotherapy treatment, and certified him as fit for usual duties.
143 Dr Brown thought the plaintiff may have suffered some short term muscle or soft tissue strain in the region of his lower back and left hip related to work, but there was no evidence of significant pathology that could be considered a work related injury. Based on his findings at that time, he thought the plaintiff’s prognosis was excellent. He has not seen the plaintiff since.
144 Mr David Conroy, orthopaedic surgeon, examined the plaintiff on 18 December 2007 for the purposes of an impairment assessment.
145 On examination, there was no spinal deformity or tenderness. The plaintiff had half the range of flexion forwards in the lumbosacral spine, a third of the anticipated range of extension, and half the range of lateral movement, carried out hesitantly. Reflexes were present, equal, and brisk, and there was no wasting. Sensation appreciation was normal, and the plaintiff had good powerful movement.
146 Mr Conroy viewed an MRI scan of the lumbar spine dated March 2006 showing an L5-S1 intervertebral disc protrusion with an annular fissure, but without evidence of nerve root involvement. Mr Conroy concluded the plaintiff had an incompletely resolved lumbar intervertebral disc injury.
147 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on two occasions: initially on 21 November 2006, and more recently on 19 June 2009.
148 On re-examination, the plaintiff complained of ongoing low back pain and that his hip was not so bad unless he squatted or twisted. He could walk for up to half an hour to the local shops, and could drive a car for an hour, although he had pain. He was inactive at home, and did no gardening.
149 On examination, thoracolumbar spine movements were moderately restricted, particularly flexion and extension. There was no significant spasm. There was tenderness in both buttocks. Straight leg raising was to sixty degrees, and there was no neurological abnormality. Waddell’s signs of axial compression on pelvic rotation were positive.
150 Mr Shannon noted there had been little change in the plaintiff’s condition since the earlier examination. Investigations had suggested that the plaintiff did not have any inflammatory disorder as a cause of his pain, and that his pain was most likely to be predominantly due to degenerative change in the lumbar spine, although the clinical examination indicated some tenderness over the greater trochanter.
151 Mr Shannon thought there was probably some aggravation of underlying degenerative change by the incident. He thought the plaintiff had a capacity for work, and that such work should avoid prolonged or repetitive bending or heavy lifting. He thought the plaintiff would therefore not be suited to fulltime pre injury duties.
152 Whilst there were some non-organic features, such as the positive Waddell’s signs, Mr Shannon thought the plaintiff had a genuine back problem. He thought in the absence of a functional overlay the plaintiff would be capable of light to moderate physical work.
153 Mr Shannon considered the plaintiff would be physically capable of working as a motor vehicle and vehicle parts salesman, forklift driver, product assembler and car detailer. He thought he would also be capable of working as a traffic officer, a sorter/forklift driver, and as a car detailer, provided there were appropriate restrictions on bending and lifting.
154 Dr Tony Kostos, rheumatologist, initially examined the plaintiff on 6 October 2006, and re-examined him in May 2008.
155 On re-examination, the plaintiff continued to complain of constant mid lower back pain, but he claimed he did not have any left buttock or posterior thigh pain as previously noted, but complained of left lateral hip pain over the greater trochanter.
156 On examination, the plaintiff had considerable restriction of thoracolumbar spine movements while sitting and standing, with pain in all directions. He also had pain with simulated rotation. Dr Kostos noted the plaintiff had markedly exaggerated tenderness to skin touch over the entire lumbar region, extending across the lower back to the iliac crest and over the sacrum and the buttocks. There was a full range of hip movement, but the plaintiff complained of pain over the lateral aspect of the left hip, and was tender to palpation over the greater trochanter. Straight leg raising was to forty five degrees bilaterally, with negative sciatic nerve stretch testing on the right. However, on the left the plaintiff claimed to get pain in his back and left hip on this testing. The same result was noted with the knees bent. Neurologically the plaintiff’s reflexes were normal.
157 As Dr Kostos stated following the first examination, a precise diagnosis of the plaintiff’s condition was impossible to make, and in his view, really the results of the investigations were irrelevant. He therefore dismissed comments made by Dr Ebringer, Mr Flaim and Mr Flanc because they ignored evidence-based guidelines which stated that the results of investigations cannot be used to establish a cause of back pain. Further, he commented the so-called diagnosis of an aggravation of pre-existing degenerative change did not withstand any scientific scrutiny whatsoever.
158 Dr Kostos concluded it was certainly possible that the plaintiff’s former employment was no longer materially contributing to his current condition, which, in Dr Kostos’ view, seemed to relate more to non-physical factors.
159 Dr David Barton, consultant occupational physician, examined the plaintiff on 19 March 2009.
160 On examination, the plaintiff described no overall change in his condition, despite ceasing work thirty months ago. He described pain present all the time in the lower back, spreading towards both sides, and at times extending down the lateral aspect of the left leg into the calf.
161 Dr Barton commented that on examination the plaintiff presented as someone strongly symptom and injury focused who tended to move in a fairly cautious way and without an obvious limp. Specific examination of the back showed exquisite tenderness to light palpation over most of the sacrum. There was restriction of all back movement. Straight leg raising was limited to about forty five degrees on both sides, although Dr Barton noted the plaintiff was able to later sit upright on the examination couch.
162 Reflexes were normal in the lower limbs, and it was difficult to test muscle power because of reported pain. Sensation to light touch was increased around the whole of the left upper leg area.
163 Dr Barton believed the plaintiff had become somewhat entrenched in a sick role, with a degree of abnormal illness behaviour playing a part. He would have expected the type of symptoms the plaintiff developed relating to work as settling down once time went by. In his view, the plaintiff did not present with any clear evidence of an ongoing physical problem, although numerous features pointed towards a degree of functional overlay, namely the widespread areas of marked tenderness, the discrepancy between the plaintiff’s limited straight leg raising and postures noted at other times, the increase in symptoms with axial loading, the non-anatomical sensory changes in the left leg, and the reported pain on testing muscle power, even though the plaintiff demonstrated significant muscle power when walking.
164 Dr Barton believed the plaintiff may have suffered from a soft tissue injury in the early stages of his claim, but that he had recovered from that condition, and there was now no physical medical condition relevant to any claimed injury. He believed the plaintiff was fit and capable for normal work, and his prognosis was excellent.
165 Professor George Mendelson, psychiatrist, examined the plaintiff in November 2008.
166 Professor Mendelson noted during interview that the plaintiff did not show any indications of formal thought disorder. There were no indications of any abnormalities of thought content, such as delusions or overvalued ideas. There was no abnormality of stream of thought. There were no indications of any problems with memory or concentration.
167 Professor Mendelson concluded that the plaintiff was not mentally ill, and there was no indication that he had any loss of work capacity due to any diagnosable mental disorder or psychiatric impairment.
The Defendant’s Lay Evidence
168 Mr Frank Francalanza, currently employed as Logistics manager for the defendant, swore an affidavit in relation to this matter in July 2009.
169 Mr Francalanza deposed that at the time of the incident the plaintiff was employed as a Level 5 storeman, also known as a leading hand. This was the highest level of storeman and the plaintiff was in charge of two employees even prior to the said date.
170 The plaintiff had been placed on light restricted duties both before and after the incident which would have restricted him to driving a forklift. He would also have been restricted from lifting any weight. His job title remained the same whatever duties he was doing.
Video Surveillance
171 Fourteen minutes of film was taken of the plaintiff’s activities over 8, 14 and 20 April 2009. The plaintiff was shown at one stage lifting up a box. He attended Dr Branson’s rooms for his monthly visit. He was shown briefly standing playing the poker machines on 30 April 2009.
172 There was brief film of the plaintiff’s activities on 28 May and 1 June 2009.
173 On 20 and 21 July 2009, the plaintiff was filmed at the house where he painted the window frames. He started work at about 10.30 am. He worked until about 3.30 or 4.00 pm on both days, and also the following day. He was shown having a “smoko” on a couple of occasions.
174 Whilst doing this job, the plaintiff agreed he had used a ladder, which he was able to slide out of his van. The plaintiff explained that he only did a bit of the job at that stage, as the client could not come up with all the money at once.
175 There was eight minutes film of the plaintiff’s activities on 22 October, and 3 and 4 December 2009. On 22 October 2009, the plaintiff was shown using a whipper snipper and also mowing the lawn at his home.
176 Short surveillance on 3 and 4 December 2009 showed the plaintiff walking across the road. The plaintiff agreed that he did not always walk with a limp, and “if the pain started aggravating he did have a limp”. The plaintiff was also shown painting for a brief period, standing on the third step of the ladder.
Findings
177 It is not disputed that the plaintiff suffered a compensable injury in the incident on the said date.
178 The preponderance of medical opinion is that the plaintiff suffered an aggravation of pre-existing degenerative disease of the lumbar spine at L5-S1 in the incident.
179 In this case, where there is evidence of a pre-existing condition back condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the incident is serious and permanent.
180 Whilst the plaintiff had some back complaints in the early 2000’s and had periods of light duties and some time off work and physiotherapy in 2001 and 2003, he was able to work full time in a heavy manual job until the said date and was having no treatment at that time.
181 In any event, no issue was taken by the defendant in this regard and I accept that the plaintiff’s back was not giving him problems of any significance at the time of the incident.
182 The issue for determination is whether the impairment to the lumbar spine is “serious”?
183 The impairment to the plaintiff’s lumbar spine 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, as at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
184 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26.
185 Significantly, since the incident, as a result of lower back pain, the plaintiff has been unable to engage in unrestricted heavy manual work.
186 Prior thereto his manual tasks included lifting twenty to thirty tonnes of tyres of varying weights over an eight-hour shift. He was also engaged in forklift driving and work as a leading hand in charge of a shift.
187 After the incident, the plaintiff’s lifting capacity was reduced to one to two tonnes per shift and his pre-incident duties continued. He was also required to train TNT employees.
188 The preponderance of medical opinion, save for Dr Barton, who thought the plaintiff had recovered from any incident-related condition, and Dr Kostos, who thought it was impossible to make a diagnosis, is that the plaintiff does not have the capacity for unrestricted manual work.
189 I consider this to be a serious consequence in a man whose work history has been solely of this nature and who has limited skills and education, and also problems with dyslexia, although there is limited evidence of that problem.
190 The restrictions placed on the plaintiff’s work by medical practitioners since the incident of not squatting, no lifting over eight kilograms and avoid bending, are quite onerous.
191 In addition to the interference with his employment capacity, there are other consequences of the plaintiff’s back injury which were largely unchallenged in cross-examination.
192 I accept that the plaintiff has had persisting, fluctuating back pain since incident, in relation to which he still requires medication in the form of Celebrex and Panamax on a regular basis.
193 The plaintiff’s sleep is disturbed because of back pain. He has problems with prolonged sitting and standing and is unable to bend and squat freely.
194 There was nothing shown on extensive video surveillance which I considered to be inconsistent with the plaintiff’s evidence as to his level of pain and disability. He was shown briefly undertaking the painting work which he had deposed to and at times was shown resting, leaning on a car or a wall having a “smoko”. He was not shown engaged in any heavy or repetitive activity.
195 I was not troubled by other matters raised by counsel for the defendant as to the plaintiff’s credit. Whilst the plaintiff agreed that he told medical examiners on numerous occasions that he had not worked between the time he was retrenched and when he started painting work in 2009, and had not told them of the six weeks’ work in the car yard, he explained he meant he was not working full time.
196 Prior to the incident, the plaintiff was a man interested in maintaining his fitness. His sporting activities, including jogging, taking long walks, attending the gym and swimming recreationally, have ceased due to back pain.
197 Taking into account all the evidence, I accept that the impairment to the plaintiff’s back resulting from the incident when judged by comparison with other impairments in the range of possible impairments is more than significant or marked and at least very considerable.
Loss of Earning Capacity
198 Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 199 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. 200 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
201 “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.
202 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
203 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
204 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
205 The plaintiff’s gross earnings from personal exertion at the date of hearing are his earnings from the two painting jobs.
206 Counsel for the defendant submitted that the “without injury” earnings figure was in the range of $55,000 to $70,000 - the lower figure being an average of the plaintiff’s gross earnings in the three years before injury - and the upper figure including the overtime which the plaintiff had commenced to receive before the incident and continued to receive until he was retrenched.
207 Counsel for the plaintiff dealt with this issue more specifically. He put three possible scenarios - Mr Allan’s figure of $83,476 made up of wages of $77,448 and employer superannuation contributions of $6.028, the wages of $77,448 alone and the third alternative, based on the plaintiff’s earnings in the nine weeks prior to the incident which annualised, totalled $77,145.
208 The definition of “income from personal exertion” in Section 138AB(38) of the Act which adopts the definition set out in Section 6(2) of the Transport Accident Act, includes employer superannuation contributions. Therefore, I accept that the figure which most fairly reflects the plaintiff’s earning capacity had the injury not occurred is $77,748, a figure based on the projected earnings increases set down in the South pacific Tyres - National Union of Workers Certified Agreement 2003 and subsequent wage adjustments made by the Australian Fair Pay Commission, together with employer superannuation contributions of $6,028.
209 Sixty per cent of $83,476 is $50,085 or $963 per week.
210 As counsel for the plaintiff conceded, the plaintiff does have a capacity for employment, albeit restricted.
211 In an application pursuant to s.134AB, the onus is squarely on the plaintiff to establish loss of earning capacity and to the requisite threshold. The onus is not discharged by the rejection of the defendant’s calculations or even their witnesses altogether on the topic: see Barwon Spinners (supra) at para 70.
212 The plaintiff must therefore establish that there is no suitable employment in which he could earn more than the threshold of $963 and that this situation is permanent.
213 As the plaintiff conceded in cross-examination, had he not been retrenched he would have continued to work full time in the alternate duties that had been made available to him by the defendant for eighteen months or so following the said date.
214 I do not accept, as his counsel submitted, that the plaintiff’s job with the defendant following the incident was some sort of protected employment – and that the principles in Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) VSCA 230 therefore applied.
215 It is not a situation where the duties performed by the plaintiff following the incident were a “contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker was suited”: see Buchanan JA, at para 10.
216 There was still relatively heavy lifting involved and the role of leading hand was maintained, with the plaintiff allocating work to other employees, as he told Mr Radley.
217 The plaintiff’s post-incident employment with the defendant also involved duties training future TNT employees a role which the plaintiff said that he enjoyed. He also continued other supervisory duties which he had undertaken before the incident.
218 It is also of some significance to note that the plaintiff told Mr Radley that his work with the defendant involved some minor computer data input work and that following psychological and vocational testing, Mr Radley thought the plaintiff could complete a short TAFE course.
219 I find therefore that the plaintiff’s job post-incident was a real job and that he had the capacity to earn in excess of $963 per week had he not been retrenched.
220 This is not a case where the plaintiff’s condition has deteriorated since ceasing work - to the contrary, his evidence is clear that had he not been retrenched he would have continued in his post-incident duties full time. Further, there is no medical evidence of any deterioration in the plaintiff’s condition since that time.
221 Whilst the plaintiff said he does not think he could paint constantly because the work is too heavy I do not accept that he is capable of only undertaking painting work for twenty hours per week. He has only tried working three days in a row for a few weeks because that was the time frame available to him in the one larger job he has obtained.
222 The plaintiff would rather be doing his old job than working as a self-employed painter. He is also prepared to do warehouse work for Safeway or Coles driving a forklift if that work is available.
223 The plaintiff deposed that he earned $3,000 for the painting work which he undertook at the chiropractor’s premises over a four-week period, earning $750 per week.
224 The plaintiff’s viva voce evidence was that he was paid $25 per hour which suggests he was working thirty hours per week, not twenty or twenty one hours which he maintains is his present capacity. If he in fact worked twenty one hours per week he would have been paid $35 per hour to earn $750.
225 If the plaintiff was paid $35 per hour he would need to work only twenty seven hours per week to earn in excess of $963 per week and he would not suffer the requisite statutory loss.
226 Taking into account all of the evidence, I do not accept that the plaintiff has a permanent incapacity for employment such that he could not earn in excess of $963 per week or $50,076 per annum.
227 Having made this finding, I am not required to consider the retraining and rehabilitation issues set out in s.134AB(38)(g) of the Act.
228 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and I dismiss his claim in relation to loss of earning capacity.
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