Micevski v Kraft Foods Limited
[2012] VCC 1788
•28 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00437
| PETER MICEVSKI | Plaintiff |
| v | |
| KRAFT FOODS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 October 2012 | |
DATE OF JUDGMENT: | 28 November 2012 | |
CASE MAY BE CITED AS: | Micevski v Kraft Foods Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1788 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the lumbar and cervical spine as one injury – aggravation – pre-existing degenerative condition – causation
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Josevski v Chiquitta Mushrooms Pty Ltd & Victorian WorkCover Authority [2007] VCC 1653; Ivanovski v Menzies International Cleaning Contractors Pty Ltd [2006] VCC 447; Filippou v Dimitros & Transport Accident Commission (unreported) VCC, March 2001; Petkovski v Galletti [1994] 1 VR 436; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; HadenEngineering Pty Ltd v McKinnon [2010] VSCA 69; Perry v Duvoisin & Transport Accident Commission [1995] VCC 19.
JUDGMENT – application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with Mr R Forsyth | John Dellios & Associates |
| For the Defendant | Ms K Galpin | Wisewould Mahoney |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him during the course of his employment with the defendant, in particular in October 2005, when the plaintiff suffered injury to the spine, more particularly injury to the low back, the lumbar spinal processes and the neck, the cervical spine. In 2006, there was aggravation of the spinal injuries.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
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.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The part of the body function said to be impaired for the purpose of paragraph (a) is the spine.
6 The plaintiff relied upon two affidavits, sworn 29 September 2010 and 9 March 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the spine in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[6]
[6]s134AB(19B) and 38E of the Act
(a) that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7]
(b) that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[8]
[7]s134AB(38)(e)(i) of the Act
[8]s134AB(38)(a) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63]
12 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)must make the assessment of “serious injury” at the time the application is heard;[11]
(d)notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[12]
[10]See s134AB(38)(h) of the Act
[11]See s134AB(38)(j) of the Act
[12]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
15 Counsel for the defendant informed the Court that the following issues would be raised by the defendant:
·The defendant says there are two discrete areas of the spine that are referred to, being the cervical and lumbar spine. The cervical and lumbar spine can only be aggregated if it is accepted the consequences arise from the one event or injury.
·The plaintiff has suffered a number of injuries, as well as underlying degenerative problems. It is not appropriate to amalgamate all injuries together. Each aggravation injury must be separately assessed.
·In relation to an aggravation injury, it is incumbent on the Court to consider whether, absent any injury, the plaintiff would be likely to suffer the same consequences of pain and restriction in his back and neck.
·The plaintiff continued to work full time in his usual work prior to applying for a voluntary redundancy in June 2007, which was accepted. The plaintiff is now aged sixty-five and would have retired at that age. Accordingly, the plaintiff has not suffered a serious loss of earning capacity and a loss of 40 per cent or more of his “without injury earnings” as a consequence of any impairment arising from the alleged injury.
The Plaintiff’s Evidence
16 In his affidavits sworn on 29 September 2010 and 9 March 2012, the plaintiff deposed that:
· He commenced work with the defendant in 1974 as a storeman and forklift driver. In 1998, he commenced as a line storeman on the peanut butter line.
· He suffered an injury to his back in about 1990, after which he had aches and pain in his back after heavy physical work. In September 2003, he injured his neck. He had time off work and eventually returned to normal duties. He did not have any back or neck pain doing his work.
· In October 2005, he worked five days straight, driving a forklift. After two days, he noticed pain in his neck and low back. The pain gradually worsened each day. He tried to keep going, but after five days he was in a great deal of pain and reported his injury to his supervisor.
· The following Monday, he attended Dr Gorgioski and was given a certificate for a week off work. He returned to work on his normal duties. He was continuously involved in movements and activities that brought on pain, but he needed to work.
· In March 2006, he suffered worsening pain in his low back when lifting cartons. He saw Dr Gorgioski and had a week off work. In late 2006, he experienced increased neck pain when his forklift collided with another forklift. He did not require time off work. He continued to work until August 2007, when he accepted a redundancy package.
· He applied for jobs that he hoped would be lighter work. He was unsuccessful in obtaining employment.
· He continues to have pain in his spine. He has pain at the base and sides of his neck. His neck aches all the time and is made worse by turning or twisting his neck, or looking up in a fixed position. The pain travels from the back of his neck to the forehead and causes headaches. He occasionally gets stiffness and numbness in the little and ring fingers of both hands. His neck is stiff in the morning and he does exercises taught to him by the physiotherapist to ease the stiffness. He also has aching in his lower back, which becomes more severe with activities involving bending, twisting and standing, or sitting for too long or walking too far.
· He continues to attend Dr Gorgioski for treatment once or twice a month. He is prescribed Voltaren, which he takes when the pain is bad, usually two to three times per week,
· He can drive for up to an hour, then needs to stretch and ease the pain. He tries to garden, depending on the level of pain. He has problems manoeuvring the lawn mower, but uses it if he feels better. He does as much as he can at home, cooking from time to time.
· Prior to his injury, he played social indoor soccer, which he misses. He is still able to fish on the beach and off the pier, but is restricted in casting the rod, and tires easily.
· He has difficulty lying in bed and sleeping. His sleep is regularly disturbed by the pain. This has caused his wife to sleep in another room.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff gave the following pertinent evidence:
· By the time he took the redundancy, he always had pain in his back and spine.
· He completed an incident report in relation to 16 May 2007 when he drove his forklift for approximately two hours without a break, as he had to catch up on his work, and aggravated his back.
· He said he told Mr Nelson he drove a forklift 60 per cent of the time.
· In 1999, he pushed a 50 to 60-kilogram gas bottle, because it was going to fall off the rack, and suffered back pain. The company doctor provided treatment. The back recovered. Occasionally, from time to time he had some pain.
· In 2000 or 2001, there was a change of forklift with straight seats. He complained about the new seat because it gave him pain in his back, but he did not receive treatment and he was told to continue using his old forklift, because the doctor said the new forklift would cause damage to his back. The pain disappeared altogether.
· In 2003, when driving the forklift, he ran over a pallet board and his neck was injured. He saw his general practitioner, and the company doctor organised physiotherapy. He was prescribed medication and was off work for one week and returned to normal duties.
· In October 2005, he suffered injury in his neck and back, which he reported. He said the pain in his neck and back came from twisting and reversing the forklift. He agreed it was possible he did not have any treatment.
· In October 2005, his general practitioner certified his return to work on modified duties,[13] with no neck twisting, light duties and full time.
[13]DCB 61
· He did not return to light duties as there were no light duties available, and returned to his normal work.
· On 7 November 2005, his general practitioner certified him fit for normal work.[14] He did not consider he was fit to do normal duties and did not return to his general practitioner that year.
[14]DCB 63
· He agreed he saw his general practitioner on 27 March 2006 for his neck pain and he was given Voltaren gel and tablets, and an x‑ray was performed.
· He agreed he told Mr Carey in March 2006, that when driving a forklift, another worker reversed into his forklift and he suffered neck pain, and the next day, when lifting some boxes, he strained his back.
· He was given modified duties for three days, and on 29 March 2006, he returned to see his general practitioner and he was certified off work for a week because of his back. He had a CT scan of his lumbar spine. From 4 April 2006 to 30 April 2006, he was certified fit for alternative duties, no lifting, no twisting and no forklift driving; however, he resumed driving the forklift as there were no light duties.
· Apart from Voltaren, he was not prescribed any medication for a period of one-and-a-half years.
· He agreed there were three injuries to his neck in 2003, 2005 and 2006.
· He agreed he had injuries to his back in 1990, around 2000, 2005 and March 2006. He agreed he told Mr Nelson he could manage his job, which he continued to do for nearly fourteen months. He agreed he did not take any further time off work, and was not taking medication until after he ceased employment. He said it was his intention to work until sixty-five. As of October last year, he was going to finish work on his sixty-fifth birthday, because he could not handle the reversing. If he had not been injured, he may have worked another year after sixty-five.
· On an average day he gets up in the morning and goes for a walk, comes home, has breakfast, then goes out to the shopping centre, reads the papers, a little bit of walking and will go to the library for an hour or so, where he reads the papers and returns and does some cooking and visits friends.
· He visits his holiday house at Phillip Island for a few days and sometimes goes fishing and to the beach, and mows the lawn. He prunes the roses, digs in the garden and works in the vegetable garden, he works bit by bit. He digs for ten minutes and then has a rest. He said currently, his biggest problem with neck movements is, when he turns to the right or left, he cannot remain turned for more than a minute before the pain increases and becomes severe. So far as his back is concerned, he can bend down and get up, but prolonged bending of more than a minute activates the pain, which becomes more severe. He takes Voltaren tablets when the pain gets worse.
· He can drive to and from Lalor to Phillip Island, but normally stops for coffee. The trip takes approximately two hours.
· When his wife was working, he did the cooking and maybe washing the dishes.
· He said the pain in his neck after September 2003 was on and off and sometimes he felt better. He agreed that it had been the same as that since 2003. He said after the 2005 injury, the pain in his back and neck never changed. He had hoped it would improve but it did not, even up to today. He agreed that the pain in his neck is something that comes when he turns his neck and holds it in one position. He said the pain in the back before 2005 was improving. After the 2005 incident, it remained the same.
· He said in the winter months he was less active. He became upset and returned to taking Prothioden or Valium. He said in 2006, he stopped taking Prothioden because he does not like taking medication. However, it still takes him approximately an hour to go to sleep at night and he wakes during the night because of the pain and the uncomfortable position. He told this to the Medical Panel.
· While asleep, he does not feel anything, but when he wakes in the morning, he experiences stiff neck pain and his hair is “all over the place”, which means he has had a restless night. His sleeping pattern has continued as in 2010.
· He had applied for two jobs in the plastics industry, which did not involve heavy lifting, neck twisting or bending. He said he could not work for eight hours because he cannot stand for that long. He thought he could work may be four hours a day. He said he was able to work because he tries to do things as much as he can for as long as he can. He does not believe much in medicine, as it only provides temporary relief. He left work because he reached a stage where he could not work any longer. He needs a job where he can sit or stand and change his position and not work long hours.
· He said he follows the soccer and used to coach the juniors. He stopped watching them two years ago because they were not winning and he is not comfortable. He would go on his own and meet his friends at the soccer. He agreed he stopped playing soccer ten years ago.
18 In re-examination, the plaintiff said the following:
·The incident in 2005 was much worse and his back did not improve like the previous injuries. He said between 2005 and when he ceased work, the level of pain depended on what he was doing, but the pain was increasing. He has never been completely free of neck and back pain.
·He said if the redundancy package had not come along, he could not have continued; he could not cope with the reversing and the pain that he was experiencing at work.
·He digs in his garden for five to ten minutes. He has to stop because of the pain in his back. If he can, he returns to digging the same day, or continues the next day.
Investigations
19 On 24 September 2003, a CT scan of the cervical spine showed:
“At C3-4 there is a minimal posterior disc bulge. There is some osteophytic lipping at the posterior margins of the uncovertebral joints. The foramina are clear.”
20 On 30 March 2006, a CT scan of lumbar spine showed:
“At L4-5 there is a broad based shallow left posterior disc prolapse which is however impinging upon the left anterior aspect of the spinal theca and causing posterior displacement and compression of the left L5 nerve root.”
21 On 12 September 2008, an MRI scan of the cervical spine showed:
“Apart from mild uncovertebral osteophytic encroachment into the neuro foramina for the C6 nerve roots with possible contact of the right C6 nerve root, no other significant abnormalities are seen.”
22 On 6 April 2009, an MRI scan of the lumbar spine showed:
“There are mild disc bulges at the L3-4 and L4-5 levels with evidence of annular disruption. No nerve root impingement is seen.”
23 On 26 October 2009, an MRI scan of the cervical spine showed mild neurocentric joint degenerative disease with some bilateral C6 and left C7 foraminal narrowing.
The Plaintiff’s Medical Evidence
Dr Chris Gorgioski
24 On 11 January 2011, Dr Gorgioski, general practitioner, reported to the Accident Compensation Conciliation Service. Dr Gorgioski confirmed that since 13 October 2005, the plaintiff had suffered from low-back pain due to driving a forklift over an uneven factory floor. He said the plaintiff took a week off and returned to work. On 28 March 2006, the plaintiff was lifting boxes at work when he experienced neck pain and aggravated his low-back pain.
25 Dr Gorgioski said the plaintiff complains of neck pain, headaches and stiffness of the neck. The pain was increased by movements and physical activities. His low-back pain was almost constant but more severe during movements, especially bending, lifting, twisting and prolonged standing. Dr Gorgioski said the plaintiff suffered from cervical and lumbar spine disc injuries due to the alleged workplace accidents. He remained unfit for any type of work. He needs to be treated conservatively with analgesics, anti-inflammatory medications, physiotherapy, hydrotherapy and massage. His condition was stable and permanent.
Mr Brian Barrett
26 In March 2009, Mr Barrett, orthopaedic surgeon, saw the plaintiff on referral from his general practitioner in respect to his low back. Mr Barrett said the plaintiff had developed some disruptions and desiccations of his upper four lumbar invertebral discs, particularly at the L4-5 disc level, where he had a modest posterior disc bulge, and a clear split seen in the posterior annular fibres at this disc level. It was his view that the heavy physical work in the course of the plaintiff’s employment with the defendant over thirty years, particularly the episodes in October 2005, March 2006 and subsequently, contributed to his back condition. Mr Barrett said that the injury was a direct result of repetitive heavy lifting and heavy vibrations while forklift driving on irregular surfaces. Mr Barrett said the lumbar disc rupture had no significant capacity to heal or repair. He would have expected that if the plaintiff had continued with his heavy type of work beyond his time of redundancy, his symptoms would have inevitably increased in severity to the point where he would not be able to perform even light and limited work. He considered his redundancy was a wise move.
27 Mr Barrett considered the plaintiff had no capacity to continue the heavy type of work. He said whether the plaintiff could have coped with light and alternative work depended on the availability of appropriate work and the alternate skills of the plaintiff. He said his symptoms and disabilities will continue into the foreseeable future. He said treatment would consist of conservative measures of rest, avoidance of bending and lifting situations and appropriate medication. Surgery was unlikely to be helpful.
Mr Peter Wilde
28 In February 2009, Mr Wilde, orthopaedic surgeon, saw the plaintiff on referral from the plaintiff’s general practitioner in respect to the neck injury. He obtained a history of an injury to the plaintiff’s neck in September 2003 when the plaintiff was driving a forklift and a board fell off the forklift and went under the wheels. The vehicle jerked uncontrollably and the plaintiff’s neck was strained. The plaintiff was off work, and returned to work on modified duties, albeit with pain. He suffered two further injuries in March 2006 and late 2006. After the third injury, the pain was more persistent and treatment was less effective. When examined, the plaintiff complained of neck pain and headaches which hurt him at night in bed, and difficulty reversing his car. Mr Wilde diagnosed a disc injury to his neck. He recommended physiotherapy and exercise. Mr Wilde did not refer to the neck injury in October 2005.
Medical Panel
29 In March 2010, the Medical Panel accepted the plaintiff suffered back and neck injury in the course of his employment as a forklift drier, with a designated injury date of 13 October 2005. An impairment assessment was issued.
MS Carmen Vinci
30 In September 2010, Ms Vinci, physiotherapist, reported that she had treated the plaintiff at the request of his general practitioner in relation to the October 2005 injury. The treatment was provided in early 2009 and again in August 2010. The plaintiff described neck pain that extended into the head, causing headaches which often disrupted his sleep. Driving his motor vehicle aggravated his symptoms, particularly when reversing. Ms Vinci’s treatment consisted of soft-tissue and joint mobilisation of the cervical spine, combined with electrotherapeutic modalities and a home exercise program. Acupuncture was trialled, with limited benefit.
31 Ms Vinci said, on review in August 2010 the plaintiff continued to suffer with ongoing pain and limitation. The range of the cervical spine was significantly limited and function significantly impaired. It was her view the nature of his employment, being both physical and repetitive, caused the plaintiff’s condition. She said the plaintiff’s condition was of a permanent nature and she thought he was permanently incapacitated for pre-injury employment. She said physiotherapy would be beneficial.
Mr Kevin S King
32 In April 2011, Mr King, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. Mr King obtained a history of an injury in September 2003 when the plaintiff was driving his forklift truck over a broken pallet board which resulted in a jerking, jolting, repetitive strain on his neck and from which he developed neck pain. He was off work for approximately a week. His symptoms largely settled and he returned to normal duties without difficulty. In October 2005, the plaintiff was driving a forklift which was stacked, obscuring his forward vision, and for the first time he found he had to drive his forklift truck backwards on a regular basis in order to steer around corners and through doorways (over rough factory floors), which the plaintiff described as heavier work. The plaintiff said this exposed his neck and back to a significant degree of jerking, jolting strains on a regular basis for the first time. After a period of five days, he became conscious of increasingly severe neck and back pains. He consulted his general practitioner and was put off work for a week.
33 The plaintiff told Mr King that from October 2005 he never fully recovered from the flare up. The symptoms became slowly worse. The plaintiff said there were further episodes of aggravation to the low-back pain in March and late 2006, both at work. The plaintiff was having increasing difficulty managing his normal duties because of the persistent and increasing severe neck and back pain.
34 Mr King said the plaintiff, despite the episodes in September 2003 and other minor flare ups of mild but definitive injury, was managing to do his work without trouble. In October 2005, his heavier work, which involved recurrent jerking, jolting strains to his twisted neck and back, appeared to have aggravated mild, pre-existing degenerative changes in the cervical, thoracic and lumbar spine, affecting discs and supporting ligamentous structures at multiple levels.
35 Mr King said the aggravation of pre-existing and mild intermittent symptoms had left him from then onwards with chronic aching pains in the neck and back of moderate severity and his symptoms have persisted to the present. He said the plaintiff found it increasingly difficult to manage his job, although he continued to work until he took a redundancy package in August 2007.
36 Mr King described the plaintiff as a genuine, straightforward man who is chronically disabled to a moderately severe degree by persistent neck and back pain. Mr King said the persistent disabling symptoms of neck and back pain, of a continuous nature, dates back to the heavier work in October 2005. He accepted that this was the period of aggravation of pre-existing mild neck and back symptoms that gave rise to his chronic disabling spinal pain from then onwards.
37 Mr King said he could probably manage light restricted duties if these were to be made available to him, but he noted that such work has not been available since he took the redundancy package in 2007. Mr King said it was a reasonable clinical assumption, if it had not been for the aggravating period in October 2005, the plaintiff might have continued to work up until retirement age with the defendant, despite mild intermittent neck and back pain – the persisting and disabling flare up of his spinal symptoms seemed to date back to this period.
38 Mr King said he detected no element of exaggeration. He thought it highly improbable he would be able to find suitable lighter work at his present age, given his “only reasonable” English skills and lack of any special work experience. He accepted the incident in October 2005 was a major contributing factor to the onset of chronic disabling neck and back pain and the episode in October 2005 was the cause of his present incapacity.
Mr Kenneth Brearley
39 In July 2011, Mr Brearley, surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He was provided with the following history:
· A history of the circumstances of the October 2005 injury.
· In March 2006, he sought treatment from his general practitioner, who organised x‑rays and CT scans. The plaintiff had a week off work and otherwise did his job without restriction. It was unclear from his report whether Mr Brearley knew what precipitated this and he was not sought for cross-examination to clarify what he knew.
· By August 2007, the plaintiff accepted a redundancy. He felt he was unable to drive his forklift. He hoped he would improve after a few months and would be able to seek employment.
· The plaintiff was having increasing pain in the lower back and to a lesser extent, in the neck.
· When examined, the plaintiff complained of constant pain of variable severity in the low back, worsened by long standing and sitting for long periods and also by walking for long distances. He complained of pain in the neck when he moved the neck significantly, when driving his car and generally turning to both sides when he is walking or relaxing. He complained of difficulty in sleeping and has to adjust the pillow constantly. Sleep depravation is a major problem.
· His current treatment consisted of attending the pool twice a week for swimming, walking a short distance in the morning, taking Voltaren tablets two to three days a week and Panadol a few times a week. He is unable to jog and play with his grandchildren. He is unable to garden, which was a major interest.
40 Mr Brearley described the plaintiff as “a pleasant, decent man giving his history in a straightforward manner and without any sense of exaggeration or any functional component”. Mr Brearley said the plaintiff had an intradisc rupture of the L4-5 invertebral with early annular disruption and an aggravation of a pre-existing degenerative change, with injury to the C5-6 and C3-4 invertebral discs.
41 Mr Brearley said the plaintiff’s employment in October 2005 was a significant contributing factor to the neck and back injuries. Mr Brearley said the plaintiff had no current work capacity as a result of the work injury and he did not think he would be suitable for other employment in the open labour market, and, given his age of sixty-four years, he thought he would be an irregular attendee. He thought no employer would be likely to engage him in paid employment on a part-time basis, as he could only work four hours, five days a week and he would, at times, require periods off work because of exacerbation of his back pain and the effects of medication. He would also require rest breaks of ten minutes every two hours and he would not be reliable or punctual because of his organic back and neck problems.
42 Mr Brearley said the plaintiff was not suitable for retraining because of his age and experience. He said the plaintiff’s condition will deteriorate as time passes and that his problem is entirely organic.
Dr Charles Castle
43 In September 2011, Dr Castle, occupational health specialist, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported that on 13 October 2005, he was loading and unloading trucks with a forklift. His back and neck got worse and he was given time off work. He reported an injury in 2003 when driving a forklift and incidents in March 2006 first when the bar of a forklift hit him and secondly when he was lifting some cartons in a palletiser and his back became sore and he was off work for one week.
44 The plaintiff reported symptoms of back pain increasing on bending, and neck pain when reversing his car. He had difficulty going to sleep because of the pain. He reported two car accidents, because he was unable to turn his neck to reverse. He is unable to sit for more than twenty minutes and could drive for up to one hour. He walks for one hour twice a day and can carry about 3 to 4 kilograms. His current medication is Voltaren, from one tablet two to three times a week, to one tablet twice daily.
45 Dr Castle said the plaintiff’s neck injury is due to aggravation of neurocentral disease at C6-7 and C7-T1. His back problems are due to mild disc bulges at L3-4 and L4-5 levels with evidence of annular disruption. All are moderately severe. Dr Castle said the plaintiff’s employment on or about October 2005 was a significant contributing factor to his spinal injury. Dr Castle said that even though the plaintiff kept working at his pre-injury employment, he was incapacitated for it, and that incapacity continued, and will continue indefinitely. He said the plaintiff had no current work capacity and has no capacity for suitable employment. It was his view that driving the forklift over uneven ground precipitated the lumbar annular fissure.
The Defendant’s Medical Evidence
Mr Peter Nelson
46 In April 2006, Mr Nelson, surgeon, examined the plaintiff at the request of the defendant in relation to the March 2006 injury. Mr Nelson said the plaintiff suffered a musculoligamentous strain to the supporting ligaments and related structures of his neck and the prolapse of a degenerative disc at the L4-5 level in the lumbar spine. He noted there was some stiffness in his cervical spine, which he believed was of a degenerative nature and there was mild limitation of back movement. He accepted that employment has been a significant contributing factor to his neck pain but was no longer a significant contributing factor, the musculoligamentous strain event of March 2006 having recovered. He said his ongoing problems and current state with respect to his neck were due to degenerative changes associated with the aging process.
47 Mr Nelson said employment had been a significant contributing factor to the plaintiff’s back problem, in the sense of a prolapse of a degenerative disc at L4-5 level with some continuing but improved symptoms, including referred pain to his legs. He said there were associated degenerative changes elsewhere in the lumbar spine. He said that employment remains a contributing factor to the lumbar spine problem.
48 Mr Nelson said the plaintiff was not capable of unrestricted work. He imposed limitations of no repeated flexing, twisting strain in his neck, and forklift driving should be limited in the reversing fashion, because of the strain on his neck. He said forklift driving should be limited to three to four hours per day, interspersed with other duties. He imposed restrictions of limited bending and stooping, and lifting to 5 kilograms. He said the plaintiff is likely to have flare-ups of his symptoms from time to time, with progressive deterioration.
49 He said the prognosis in relation to the prolapsed disc in the lumbar spine is uncertain. He said treatment should include restricted activity, anti-inflammatory medication and analgesics as required. He did not recommend physiotherapy, as it may aggravate the condition. He said surgery may be necessary in the future if the prolapse in the lumbar spine persists or enlarges.
Dr Timothy Entwisle
50 In April 2006, Dr Entwisle, psychiatrist saw the plaintiff in relation to the March 2006 injury. He described the plaintiff as a man of few words who was fully co-operative and gave an understated account of his condition. Dr Entwisle said the plaintiff did not present with a psychiatric illness but said he was not sleeping.
Dr Michael Bowles
51 In August 2010, Dr Bowles, occupational physician, saw the plaintiff at the request of the defendant’s insurer in respect to the October 2005 injury. Dr Bowles said the plaintiff presented with mechanical neck and back pain. He thought the current complaints were highly likely to relate to the normal aging process. He said it was highly unlikely that the plaintiff’s employment had been a cause. There was no evidence of an injury in relation to the ongoing problem in the neck or back. He said there is no question that sitting in a forklift and bouncing around and twisting and turning can lead to neck and backache, but that that did not necessarily mean there had been an injury or ongoing pathology caused by those activities. He said removal from the work activity allows the complaints to settle. The fact that the condition had become worse since leaving work would be in keeping with the normal aging process.
Mr Ian Jones
52 In January 2011, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. It was his opinion that the plaintiff suffered from degenerative disc and joint disease in the cervical spine, manifesting as neck pain and stiffness. He said in the lumbar spine the plaintiff has a similar problem of mild degenerative disc disease at the L3-4 and L4-5 levels, with some associated facet joint disease at L4-5. He said there were no functional symptoms or signs expressed by the plaintiff in relation to his neck and lower back.
53 He reviewed the investigations and said they suggested that the changes in both his neck and lumbar spine pre-dated the October 2005 incident. He said it was possible that the work described by the plaintiff on 13 October 2005 aggravated the pre-existing degenerative changes involving his neck and lower back. He said it was possible that even without the event of October 2005, the pathological changes would have become increasingly symptomatic in the future and that the pre-existing pathology in the plaintiff’s neck and lower back would have compromised the plaintiff’s ability to lift, bend and carry, even without the event of 2005.
54 In 2012, Mr Jones reviewed the plaintiff, and said that his neck and lower back were unchanged from the examination in 2011.
55 In March 2012, Mr Jones said he had reviewed the reports of Mr Wilde of February 2009, and Mr Barrett’s reports of 2009 and 2010. He said the plaintiff had not described the episode in March 2006 when he examined him. Having reviewed the reports, the additional information did not cause him to make any further comments other than those made in his previous reports.
Mr Brian Davie
56 In October 2011, Mr Davie, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor. On examination, he noted voluntary resistance on movements of the lumbar spine which were moderately reduced. It was his opinion that the plaintiff’s present condition was consistent with intermittent neck and back pain on movement. He did not believe the plaintiff was currently incapacitated for his pre-injury duties, for suitable alternate employment, or for domestic and social activities. He did not believe the plaintiff’s employment was a contributing factor to his present complaints. He considered the plaintiff’s neck and back pain was related to degenerative changes and aging in the cervical and lumbar spines, together with exaggeration of his complaints at that stage.
57 Mr Davie said, after reading Mr Barrett’s opinions, he adhered to his view that the plaintiff’s continuing back symptoms are exaggerated. In respect to Mr Wilde’s opinion, he agreed with Mr Wilde that the plaintiff sustained a disc injury in the neck for which there is no easy solution. He said that changes on scans are frequently seen in the neck and back in individuals with no symptoms at all. Accordingly, he was not concerned about the x‑ray findings in the neck and back.
Mr Roy P L Carey
58 In February 2012, Mr Carey, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor. On examination, he noted that the plaintiff had global restriction of movements in all directions of the neck and the low back. It was his opinion the plaintiff had chronic neck and lumbar back pain with mild degenerative changes (spondylosis) both in the neck and low back. There was no evidence of radiculopathy or cord compression, either clinically or radiologically.
59 He said the plaintiff had restriction in lifting weights. He was able to undertake relatively normal activities of daily living, albeit with some discomfort with increased exercise.
60 He agreed with the views expressed by Mr Wilde.
61 With respect to the reports of Mr Barrett, he said the lumbar spine MRI scan report had been over interpreted, in the sense that the findings are not specific to pain and disability and may quite frequently occur in people of the plaintiff’s age. He said that is not to say that the plaintiff does not have a particular problem with his back, but simply there is no particular association between the radiological findings and symptoms.
Vocational Assessments
62 The plaintiff relied upon a report from Job Options Consulting prepared by Mr Bill Radley, psychologist. Mr Radley reported that the plaintiff was aged sixty-four, of average general intelligence, with a low level of education (Year 8) and limited skills in reading and writing in English, and with no academic ability to undertake any occupational retraining. Mr Radley said the plaintiff had:
·no current capacity to return to his pre-injury employment;
·no current work capacity to return to any type of alternative employment;
·no capacity to undertake any type of occupational retraining;
·no capacity for any type of employment in the future.
63 He noted that the plaintiff had not been offered any form of retraining by his employer.
Video Surveillance
64 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the Defendant’s Court Book. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
65 The plaintiff gave straightforward and direct answers to all questions put to him. He did not exaggerate or embellish his condition. I formed the view the plaintiff was genuine, honest and hardworking. My view of the plaintiff was reinforced by the description provided by the majority of the medical witnesses. Mr Jones and Mr Carey stated that there were no functional symptoms or signs.[15] Mr King said the plaintiff was alert and articulate, with no element of exaggeration.[16] Mr Brearley described him as “a pleasant, decent man giving his history in a straightforward manner and without any sense of exaggeration or any functional component”.[17] Dr Entwisle said he gave an understated account.[18] The only medical witness to express a contrary view was that of Mr Davie. Accordingly, I accept the plaintiff is a witness of truth.
[15]Mr Jones – DCB 20; Mr Carey – DCB 35
[16]PCB 95
[17]PCB 102
[18]DCB 8
Analysis of Evidence
66 I accept the plaintiff suffered a compensable injury to his neck and back in October 2005. This was not in dispute. What was in dispute was the cause of the plaintiff’s injury and the seriousness of the consequences.
67 I accept that the injury to the neck and back can be treated as one injury: injury to the spine. It has been accepted that use of the spine can be regarded as a single body function and that damage to vertebral levels in a single incident can be aggregated.[19] In this case the injuries to the cervical and lumbar spine were caused in the one event. I adopt the reasoning of Judge Wodak, in Perry v Duvoisin & Transport Accident Commission:[20]
“In my opinion it is appropriate to consider the effect of the injury to the cervical spine and the injury to her lumbar spine…and to say that cumulatively they produce a serious long term impairment or loss of function of the spine.”
[19]Josevski v Chiquitta Mushrooms Pty Ltd & Victorian WorkCover Authority [2007] VCC 1653, per Judge O’Neill; Ivanovski v Menzies International Cleaning Contractors Pty Ltd [2006] VCC 447, per Judge Wood; Filippou v Dimitros & Transport Accident Commission (unreported VCC, March 2001) per Judge White
[20][1995] VCC 19 (22 June 1995)
68 In respect to an aggravation to a pre-existing injury, Southwell and Teague, JJ, in Petkovski v Galletti,[21] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[22]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[21][1994] 1 VR 436
[22]ibid at 443
69 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
70 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the second accident was serious.
71 The evidence was that the plaintiff had suffered three injuries at work prior to the injury in October 2005.
72 In 1990, the plaintiff injured his back when he lifted a gas bottle onto a forklift truck. He told the Medical Panel he sought medical attention and had some treatment but lost no time from work, and the symptoms settled. After excessive physical activity he experienced mild, intermittent non-radiating pain which did not limit his functional capacity and continued to work. He told Mr King he was conscious of occasional, mild lumbosacral back discomfort after heavy lifting. It did not worry him, and he continued on normal duties. His evidence was that his back recovered. He had occasional pain from time to time.
73 In 2000 or 2001, he was provided with a new forklift. The seat caused back pain. He continued to use his old forklift and the pain disappeared.
74 In September 2003, he drove his forklift truck over a broken pallet board on the factory floor, which resulted in a jerking, jolting repetitive strain on his neck and he developed neck pain. He was seen by his local general practitioner and was off work for about a week. A CT scan was performed. His symptoms largely settled. He returned to work in light duties and then returned to his normal job without difficulty.
75 The plaintiff’s evidence was that prior to October 2005, he did not have any neck or back pain doing his work. There was no evidence that he received medical treatment other than at the time of the incidents.
76 I accept that by October 2005, the plaintiff had suffered injuries to his spine at work. The injuries were minor and did not limit his functional capacity. He continued to work and enjoyed his job. I find that by the time of the 2005 injury, the back and neck injuries had recovered. The plaintiff was essentially pain free and his neck and back injuries were not limiting his activities of daily living and work. However, he experienced occasional back pain, particularly after heavy lifting.
October 2005 Injury
77 In October 2005, he had to drive his forklift truck backwards on a regular basis in order to steer around corners and through doorways, over rough factory floors. This exposed his neck and back to a significant degree of jerking, jolting strains. The pain became very severe and he consulted his general practitioner, who prescribed anti-inflammatory agent Voltaren, and he was certified unfit for work for one week. He returned to work on light duties but, because there were no light duties, returned to his normal job, driving the forklift
78 I must consider the plaintiff’s injuries at the time of the trial. Accordingly, I place greater weight upon the more up-to-date medical evidence of Mr King, Mr Brearley, Dr Castle, Mr Jones, Mr Davie and Mr Carey. I place less weight on the evidence of Mr Davie as he saw the plaintiff on one occasion and was the only medical witness to suggest the plaintiff exaggerated his symptoms. This is significant, given the positive comments of so many of the medical witnesses as to the plaintiff’s genuineness. Further, he was the only witness to suggest the plaintiff was not currently incapacitated for his pre injury duties.
79 The Medical Panel, Mr King, Mr Brearley, Dr Castle and Dr Gorgioski said the plaintiff’s employment in October 2005 was a significant contributing factor to the spinal injury. Mr King, Mr Brearley, Dr Castle and Mr Jones accepted the 2005 injury aggravated the plaintiff’s pre-existing degenerative changes in the spine.
80 Mr King said the onset of neck and back pain related to the incidents at work and date back to the heavier work than usual in October 2005. He accepted that period aggravated pre-existing mild neck and back symptoms and gave rise to the plaintiff’s chronic disabling spinal pain from then onwards.
81 Mr Brearley said the plaintiff’s employment in October 2005 was a significant contributing factor to the neck and back injuries. His work as a forklift driver at that time demanded repetitive turning and twisting of the head and neck. There was also minor trauma inflicted on the lumbar spine as a result of the jarring received while driving the forklift over irregularities in the factory floor surface.
82 A number of the defendant’s doctors said the plaintiff’s injuries were due to the aging process.[23] Those doctors were in the minority. Further, the plaintiff despite his age was performing his manual work pain free until the event of October 2005. After the work incident in October 2005 he found it increasingly difficult to manage his normal duties because of the persisting and increasing severe spine pain. Accordingly, I do not accept that the plaintiff’s injuries were due to the aging process.
[23]Dr Bowles; Mr Nelson, in respect to the neck; Dr Davie and Mr Carey
The 2006 Injuries
83 In March 2006, the plaintiff lifted two cartons and felt pain in his lower lumbar region, and in late 2006, he was involved in a minor forklift accident with another forklift. He underwent a CT scan of his lower back and was off work for a week after the first incident in March and did not lose time off work after the second incident.
84 Counsel for the defendant submitted that the 2006 injuries were most productive of symptoms of injury in the plaintiff’s back and neck. The only doctor to attribute the plaintiff’s current presentation to the 2006 injuries was Mr Nelson. Mr Nelson examined the plaintiff in April 2006 in relation to the 2006 injuries. He said the plaintiff’s employment was no longer contributing to the neck injury, which he attributed to the ageing process. He said the 2006 injury was contributing to the plaintiff’s back injury. Mr Nelson was aware of the 2003 and 2005 injuries but did not consider those injuries in relation to the 2006 injury.
85 I do not accept Mr Nelson’s evidence on this point as it is not supported by any other medical opinion. The Medical Panel Report, Mr King, Mr Brearley, and Dr Castle all attributed the plaintiff’s injury to the 2005 incident. Further, Dr Gorgiovski suggested the March 2006 injury was related to the 2005 injury[24] and supports the plaintiff’s evidence that the 2005 injury was the injury that caused the spinal injury from which he is currently suffering. The medical practitioners who did not attribute his injury to the 2005 injury attributed the injury to age related degeneration,[25] were unaware of all the incidents,[26] or did not assign a specific cause.[27]
[24]DCB 67 - Certificate of Capacity
[25]Mr Jones, Mr Davie and Dr Bowles
[26]Mr Wilde and Ms Vinci
[27]Mr Carey
86 Based on the medical evidence, I accept that the 2006 injuries amounted to further strain on the plaintiff’s spine; however, I do not accept that the 2006 injuries were causative of the plaintiff’s current presentation. Accordingly, I accept that the consequences the plaintiff described arose as a result of the 2005 work injury.
87 The Court must examine the consequences of a physical impairment in the separate context of:
(a)pain and suffering; and
(b)loss of earning capacity.
88 The provisions of s134AB(38) of the Act provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity. The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity. If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).
89 Accordingly, it is appropriate for me to look first at the tests for loss of earning capacity which must be satisfied by the plaintiff.
Narrative Test – Loss of Earning Capacity
90 The plaintiff’s evidence was that the incident in 2005 was much worse than the previous incidents and his back did not improve like the previous injuries. He said he had not been free of neck and back pain since October 2005. He said he was not fit to do his job in October 2005 because he had a lot of pain, but he had to continue. He said he got the impression that he should be back at work, otherwise he would lose his job. He said he could not cope with the pain that he was experiencing which is why he accepted the redundancy.
91 The medical evidence was that the plaintiff has no current work capacity. Mr King, Mr Brearley and Dr Castle accepted the plaintiff could not return to employment. All accepted he was unemployable. Mr King accepted the plaintiff was having increasing difficulties managing his normal duties because of the persistent and increasing severe neck and back pain. Dr Castle said, even though the plaintiff kept working at his pre-injury employment, he was incapacitated for it.
92 I accept the evidence of Mr King, Mr Brearley and Dr Castle. They had a detailed history of the plaintiff’s injuries. Their explanations were consistent and logical. I accept that, had the plaintiff not injured his spine in 2005, he would have continued to work until age sixty-five or even longer. This was his evidence. The plaintiff also said this to a number of the doctors whom he saw. Further, there are many people in the community who are working beyond the age of sixty five. Mr Jones was the only doctor to suggest it was possible that without the event of October 2005 the pre existing pathology of the plaintiff’s spine would have compromised the plaintiff’s ability to lift, bend and carry.
93 In 2011, Mr Radley from Job Options Consulting said the plaintiff had no current capacity to return to his pre-injury employment; he had no current work capacity to return to any type of alternative employment; he had no capacity to undertake any type of occupational training and no capacity for any type of employment in the future.
94 The plaintiff is now sixty-five years of age, having commenced work for the defendant in 1974. He continued with the defendant until August 2007, when, because of the increasing pain from his spinal injuries, he accepted a redundancy. Borne out by his remarkable work record, I gained the impression that he enjoyed his work. This is consistent with him telling Dr Castle that he had difficulty staying at home,[28] and was committed to working. He told the Court he was looking for part-time work.[29]
[28]PCB 110
[29]Dr Castle said the plaintiff’s desire to obtain employment as a plastics injection moulding machine operator was unrealistic.
95 I accept the plaintiff was stoical in relation to his attitude to work; namely he continued to work despite the level of pain he suffered and his incapacity to perform his pre injury employment. The plaintiff’s stoicism cannot hide the consequences of the injury to this plaintiff. I am permitted to take into account the plaintiff’s stoicism.[30]
[30]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at [3], Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [47]
96 I accept that the consequences the plaintiff described arose as a result of the work injury.
97 Given all of the evidence, and the fact that the plaintiff has performed manual work for his entire working life, has no skill or training, continued to work until he could cope no longer and was employed with the one employer for thirty-three years, I am satisfied that he is unable to return to any form of employment. This represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self esteem.
98 Given the medical evidence, the plaintiff’s injury is permanent.
99 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly regarded as “considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. I am satisfied that the spinal injury is permanent, given that it has continued since the 2005. This is supported by most of the medical opinions. In reaching this view, I have only taken into account the plaintiff’s physical injury.
100 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
101 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
102 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”.
103 The “without injury” earnings must be calculated by reference to the six-year period specified in s134AB(38)(f).
104 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff 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. 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 plaintiff’s earning capacity.
105 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) of s134AB(38) therein: see Barwon Spinners Pty Ltd v Podolak.[31]
[31](supra) at paragraph [70]
106 The plaintiff’s present earnings from personal exertion are nil.
107 All doctors who expressed a view on employment said the plaintiff could not return to his pre-injury or suitable employment due to the spinal injury. I have found his restrictions are permanent.
108 I am also required to consider issues of re-training and rehabilitation pursuant to ss(g) of the Act. Mr Radley, vocational consultant, said the plaintiff had no capacity to undertake any type of occupational training. None of the medical reports suggested that further rehabilitation would assist the plaintiff. I am satisfied that the plaintiff has no prospect of retraining and rehabilitation that will enhance his earning capacity.
109 Based on the plaintiff’s presentation in Court, his age and the views expressed by both medical and vocational experts, the plaintiff has suffered a total loss of earning capacity. Accordingly, I am satisfied that he will continued to have a loss of 40 per cent or more. Therefore, I am satisfied that the plaintiff satisfied the 40 per cent requirement, and has sustained an injury within the meaning of s134AB of the Act to his spine.
110 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence proceedings at common law seeking damages for pain and suffering and loss of earning capacity as a result of employment with the defendant after October 1999 in respect to the spine.
111 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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