Mihaljcic v Westgate Logistics and VWA
[2010] VCC 1631
•25 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04728
| GORAN MIHALJCIC | Plaintiff |
| v | |
| WESTGATE LOGISTICS | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 September 2010 |
| DATE OF JUDGMENT: | 25 October 2010 |
| CASE MAY BE CITED AS: | Mihaljcic v Westgate Logistics & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1631 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC and | Victorian Compensation |
| Mr M J Ruddle | Lawyers Pty Ltd | |
| For the Defendants | Mr S Smith | Herbert Geer |
| 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 on 12 December 2005 (“the said date”) and from the said date until July/ August 2007 (“the section 70 period”).
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 spine.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(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 “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s partner, Ms Staka Jeftic, swore an affidavit on 3 August 2010. The plaintiff’s former work team leader, Mr Robert Puljic, swore an affidavit on 19 August 2010. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is presently aged forty eight, having been born on 16 October 1961 in Bosnia.
7 The plaintiff completed high school in Bosnia. He obtained the necessary marks to enrol in a law degree, of which he completed one year. In cross- examination, the plaintiff agreed he had to have good references to get into law, and he had no trouble meeting the criteria to undertake that course.
8 The plaintiff then worked as a portrait painter at tourist locations in Bosnia.
9 The plaintiff migrated to Australia with his partner in 1996. In 1998, he completed an AMES English language course which involved over five hundred hours’ of study. The plaintiff worked in a formal wear hire shop, packing and cleaning clothing. In or about 2004, he obtained a warehousing certificate.
10 Whilst the plaintiff deposed he had poor English speaking skills and that he had particular difficulties reading and writing English which would result in him having difficulty retraining, in cross-examination, the plaintiff said that he had no problems with English when doing the warehousing certificate or when he worked for the first defendant. Sometimes, but not always, he had problems reading English newspapers.
11 In or about May 2000, the plaintiff commenced employment with the first defendant on a casual basis, later becoming a full time employee in 2002.
12 Prior to the said date, the plaintiff found work with the first defendant physically demanding but enjoyable, and had he not been injured he would have continued in similar employment indefinitely to retirement.
13 The plaintiff had not experienced any spinal problems before the said date. In cross-examination, the plaintiff confirmed his work first caused him spinal problems only after the said date.
14 The plaintiff worked for the first defendant as a storeman/packer on varying hours, not limited to thirty eight hours per week, plus overtime hours. His duties included lifting of heavy goods, operating a pallet truck, and driving a small tug vehicle. These tasks involved repetitive bending and lifting.
15 The plaintiff deposed that he was generally earning about $678 gross per week. He also said that in the eight months or so before the said date, he had been working in the warehouse for about ten to eleven hours a day.
16 On or about the said date, the plaintiff suffered an injury to his spine when the tug vehicle which he was driving was hit from behind with considerable force by a forklift (“the incident”). The incident impact came unexpectedly. The plaintiff experienced immediate pain in his spine, as well as his forehead.
17 In cross-examination, the plaintiff confirmed that his body was shifted on impact and moved backwards to nearly horizontal in the incident. He did not know at what speed the forklift driver was travelling, as he was not looking behind him, but the forklift travelled much quicker than a tugger. Every part of the plaintiff’s spine was affected by the incident.
18 In a Westgate Logistics Accident/Incident Report and Investigation Form dated 12 December 2005, it was noted “Goran was at the end of an aisle [when] he felt a very hard hit from behind”.
19 Over the following days, the plaintiff’s neck and upper thoracic spine became more painful.
Medical Treatment
20 As at the said date, the plaintiff was a patient of Dr M Kohn, general practitioner, and also a patient of the Millennium Clinic.
21 On the said date, the plaintiff attended Dr Kohn for treatment. In cross- examination, the plaintiff said that Dr Kohn was wrong when he found he had no neck pain and a full range of neck movement on this examination. The plaintiff agreed there was minimal tenderness of his lumbar spine and slight low back pain, and that he had a full range of back movement. The plaintiff told Dr Kohn “he [the plaintiff] had problems; he had pain”. At that time, the plaintiff was also complaining about his forehead.
22 Dr Kohn organised a CT scan of the plaintiff’s brain, cervical spine and thoracic spine, which was carried out on 22 December 2005.
23 Dr Kohn last saw the plaintiff on 16 January 2006, when a referral was given to a specialist.
24 The fact that Dr Kohn no longer treated work injury patients was one of the reasons why the plaintiff did not continue to see him. The plaintiff also ceased treatment with Dr Kohn because he did not take the plaintiff seriously and the plaintiff was unhappy with his advice.
25 On the said date, the plaintiff also saw another general practitioner, Dr Bertram, whose practice was near the first defendant’s premises. Dr Bertram gave the plaintiff a certificate for one day.
26 As the plaintiff was still dissatisfied with the medical advice he had been given, he saw Dr Al-Zaini at the Millennium Clinic the following day. Dr Al-Zaini organised x-rays of the plaintiff’s back at the plaintiff’s insistence. The plaintiff could not recall whether his neck was hurting at that time or whether he told Dr Al-Zaini his neck was hurting. The plaintiff “was telling everyone that he had forehead problems”. He thought he told Dr Al-Zaini that he was having frontal headaches.
27 Dr Al-Zaini certified the plaintiff unfit for work for three days.
28 On 14 December 2005, the plaintiff again saw Dr Al-Zaini for a review of the x-ray. The plaintiff was reassured by him that there was absolutely no problem with his back shown on x-ray.
29 The plaintiff deposed he ceased seeing Dr Al-Zaini as he was told that his clinic was also moving away from treating work injury patients. The plaintiff understood they had too many hassles with insurers and payment.
30 The plaintiff also saw Dr Eckel at the Millennium Clinic on 20 December 2005. The plaintiff asked Dr Eckel to arrange x-rays of his neck and back but he refused to do so. The plaintiff did not agree that on that examination, Dr Eckel found a full range of movement without neck or back pain. The plaintiff thought Dr Eckel was trying to minimise his problems, telling him nothing was wrong with him.
31 The plaintiff deposed that for a time after December 2005 he was frustrated that no doctor had an easy solution for his injury. He thought the doctors he had seen on the days after the incident were not paying attention to him.
32 Over the following months, the plaintiff continued to take medication. He avoided heavy activity where possible, so as not to increase his spinal pain.
33 On or about 1 May 2006, the plaintiff first consulted Mr Haw, orthopaedic surgeon, on referral from Dr Kohn. The plaintiff told Mr Haw he had problems at work, and Mr Haw discussed lifting restrictions with him, advising him not to lift more than fifteen kilograms. He also advised the plaintiff to follow conservative treatment.
34 When it was put to the plaintiff in cross examination that Mr Haw thought the plaintiff had returned to eighty per cent of his pre-incident condition, the plaintiff said he thought he was about sixty per cent better.
35 Mr Haw did not put a specific time frame on the period in which he thought the plaintiff would recover. He just said he would get better over time.
36 Following this examination, until the plaintiff started work with Linfox in about August 2007, the plaintiff thought Mr Haw might be wrong about his prediction as to recovery, but he still thought he needed longer to see if he would recover before seeking further medical attention.
37 From the said date until 13 December 2007, when he started to see Dr A Sheriff, general practitioner, the plaintiff did not take any prescription medication. During that period, he took Panadol and Nurofen. He attended the Millennium Clinic on about nine occasions, and made no mention of his back or neck problems.
38 From December 2007, the plaintiff has continued to take medication to alleviate some of his pain, including but not limited to Mobic and Panadeine Forte.
39 On 17 December 2007, the plaintiff had an MRI scan of his cervical spine organised by Dr Sheriff.
40 In about January 2008, the plaintiff consulted Dr Wijeratne, a neurologist, having been referred by Dr Sheriff. Dr Wijeratne then referred the plaintiff to Mr Jithoo, a neurosurgeon, for his opinion.
41 The plaintiff saw Mr Jithoo on 19 February 2008, at which time he referred the plaintiff for further investigations of his neck and left shoulder. He advised the plaintiff to avoid heavy or repetitive physical activity, and told him his prognosis was guarded, though he could not offer any surgery to cure or correct his symptoms.
42 On 25 February 2008, the plaintiff had a cervical spine x-ray on referral from Mr Jithoo, and on 7 March 2008, he underwent an MRI scan of his thoracic and lumbar spine organised by Dr Sheriff.
43 On or about 24 November 2008, the plaintiff attended the Epworth Rehabilitation Pain Clinic and saw Dr Kinloch for an assessment.
44 On about 28 January 2010, the plaintiff was referred by Dr Sheriff to Mr Barrett, orthopaedic surgeon. Mr Barrett advised the plaintiff he could not offer any specific treatment that would cure his ongoing constant, though variable spinal symptoms.
45 On about 4 March 2010, the plaintiff consulted Dr C Castle, a specialist occupational physician, on referral from Dr Sheriff. Dr Castle recommended the plaintiff have an injection in his neck – a procedure which is yet to be undertaken.
46 On 19 August 2010, the plaintiff saw Dr P Blombery on referral from Dr Sheriff.
Work after the Incident
47 After the said date, the plaintiff had about three and half days off work, and then returned to work for two days on normal duties. However, he found his spinal pain was unbearable, so he took another four days off.
48 With the assistance of his union, the plaintiff was then transferred to lighter duties in section 70. His work in that section involved lifting cartons of toiletries and was much lighter than the work he had done prior to the said date. He worked in section 70 until about August 2007.
49 Whilst working in section 70, the plaintiff was able to work at a slower pace, with no requirement for heavy lifting. He managed his duties with difficulty, taking medication to alleviate at least some of his back and neck symptoms, which were constant, though varied in nature. He also reduced his activities out of work so that he could continue working.
50 During the section 70 period, the plaintiff had pain all the time when working. In cross-examination, the plaintiff agreed his pain was debilitating and very troublesome, and it was stopping a whole range of activities, as well as his work.
51 The plaintiff was always with pain from the said date, and he did not complain to any doctors when he attended for unrelated matters in that period.
52 The plaintiff did not see other general practitioners during the section 70 period as he did not trust doctors and they simply did not understand his problems.
53 In cross-examination, the plaintiff said he was coping with lighter duties. He was having problems, but still continued working.
54 In about July 2006, the plaintiff took annual leave for about five weeks, as he was experiencing increased pain in the neck in particular, and he felt some time off work might improve his condition. He was struggling and he thought he could find a solution by taking more days off.
55 Whilst working in section 70, the plaintiff never wanted to give up his job. He explained that “he was very strong in his mind to keep himself at work.”
56 In re-examination, the plaintiff confirmed he found the section 70 duties hard and difficult, and that he was still required to do repetitive lifting about 800 times a day. It was, however, very important for him to keep his job.
57 The plaintiff confirmed he took Mr Haw’s advice that the problems he was experiencing would go away. The plaintiff did not go to other general practitioners because he had been to four doctors, and he thought the only doctor who could give an answer to his problems was an orthopaedic surgeon.
58 In the section 70 period, the plaintiff was taking Panadol and Nurofen. He did not take prescription medication until December 2007, when Panadeine Forte and Mobic were prescribed.
59 The plaintiff’s explanation as to why he did not take prescription medication before December 2007 was unclear. He said he did not need prescription medication as he was getting painkillers over-the-counter, and he did not know about prescription medication. He confirmed that very bad pain continued. The over-the-counter medication was not fully effective, but still helped.
60 The plaintiff agreed he was a man who would go to the doctor if he had a problem. Whilst he had very bad pain during the section 70 period, he did not know about painkillers, although he agreed that he had been prescribed medication for orthopaedic problems prior to the incident and during the section 70 period, because of flu.
61 The plaintiff denied his physical problems following the incident were short lived. He did not know he had a spinal problem, thinking he had only a muscle problem, until the December 2007 MRI scan.
62 The plaintiff confirmed that he had taken a day or so off a week from work since the five week break in mid-2006 because of his spinal injuries. He used rostered days off, which he collected once a month, and also used his usual annual leave as it accumulated.
63 When asked about having taken fifty four days’ sick leave prior to the incident, the plaintiff explained he did not have any particular health problems during that time.
64 In about August 2007, Linfox took over the firstnamed defendant’s business. The plaintiff was then moved to another warehouse in Altona. He worked there for about two and a half months, performing activities similar to his pre- injury duties, including but not limited to repetitive bending and heavy lifting of goods.
65 On 21 November 2007, the plaintiff was examined by Dr Ong, the Linfox doctor. The plaintiff initially deposed that he remembered the examination was short, and that he was in a queue with other workers for a medical check. He did not recall the doctor performing a physical examination, nor did he recall the doctor reviewing any of his pathology or consulting with any of his treating doctors before completing the assessment.
66 Later in his first affidavit, the plaintiff deposed that he saw the Linfox doctor briefly. The doctor did not physically examine him before clearing him to continue with Linfox. At that time, the plaintiff did not make much complaint of any spinal problem, as he was worried he would lose his job.
67 The plaintiff was cross-examined about a questionnaire he completed at that medical examination. Whilst he set out that he had suffered injury in the incident on the said date, and that he had suffered a cervical strain at work, he did not advise that he was having ongoing spinal problems, nor did he indicate that he was taking any medication at the time.
68 When the plaintiff answered “no” in the questionnaire about a previous back or neck injury, or spinal problems, he explained that was because he thought he had a muscle problem, not a major spinal problem, until he saw the MRI scan in December 2007.
69 In the questionnaire, the plaintiff denied taking any medication because he was treating himself and he was afraid of losing his job – “everything that can affect my prospect of losing the job, it wasn’t my intention to lose my job, that’s all”.
70 In cross-examination, the plaintiff confirmed there was only one Linfox medical examination. He could not recall if he was actually examined, but he thought he probably was. He told the examiner about the incident and that he “had problems with [his] neck, and that was it”.
71 The plaintiff was looking forward to working at Linfox. He knew if he complained that he had some medical issues, his prospects at the job would be less.
72 The plaintiff disagreed that his spinal condition was normal at the time of the medical examination. He explained: “Of course something was wrong. He knew all the time that he was not normal. All the time he knew he had a problem, and that one day he would have to face the problem on a higher level with other specialists, not with general practitioners, and that is what he did. He stopped working and he had an MRI scan.”
73 The plaintiff continued doing that as best he could, taking medication and restricting daily activities to save himself for work. He was desperate not to lose his job, and he tried to adjust to the further requirements of the Linfox job.
74 Despite his best efforts, the plaintiff was forced to cease work on 11 December 2007 as a result of his initial work injury causing him more pain when he was exposed to and performing more rigorous physical activity required by his heavier work.
75 In cross-examination, the plaintiff agreed that his spinal condition got dramatically worse whilst doing the Linfox job.
76 In or about May 2008, the plaintiff attempted to return to work on restricted duties for four days, putting cardboard and plastic into a compactor, but he was still required to do repetitive bending.
77 The plaintiff stopped this work task in particular, as he started to feel a burning sensation in his neck. Whenever plastic got stuck in the compactor and he attempted to pull it out, he exacerbated his neck pain.
78 The plaintiff was then directed to do checking of stock for four hours, three days a week, and his hours gradually increased to eight hours a day, four days a week, towards the end of August 2008.
79 The plaintiff’s neck pain gradually increased and he then reduced his workload to eight hours a day, three days a week, for about three weeks. As the plaintiff’s neck pain worsened, he reduced his hours to six hours a day, three days a week, for about two weeks.
80 The plaintiff’s work duties involved repeated walking and moving, and repeated movements with his neck to turn his head left, right, up and down to check stickers on products, causing his neck and upper back pain to become unbearable.
81 The plaintiff was unable to continue working, even on a reduced basis, in sheltered employment from on or about 30 October 2008.
82 Although keen to return to work, and intending to work to retirement age, the plaintiff believes he currently has no capacity to return to his pre-injury duties or any other suitable employment.
83 The plaintiff’s inability to return to a normal working life is of great concern to him, and is a source of loss of his enjoyment of life. Prior to the incident, the plaintiff was proud to be a hardworking and productive team member at work, and was respected by his partner as a provider and contributor.
84 The plaintiff believed he would have difficulty doing work as a signwriter as suggested by Work Co in its report of 11 July 2010, as he did not possess the computer knowledge required for the latest computerised manufacturing of signs. Further, he thought he would have difficulty due to neck and back pain in performing repeated and frequent lifting and carrying of equipment, as well as the physical task of preparing the surfaces to be painted. As a result of the pain from his injury, he also experiences difficulty maintaining a steady hand and he tends to tense up and experience sudden onsets of increased pain.
85 The plaintiff thought he would have difficulty working as a stock controller, as the job required prolonged walking and standing to carry out the duties. The plaintiff thought he would have difficulty concentrating, as he was often distracted by his pain and was lethargic from the lack of sleep as a result of his injury.
86 The plaintiff thought he would have difficulty working as a packer, as the job required prolonged and repetitive physical functions, such as bending, twisting, standing, walking and heavy lifting.
87 As a result of the physical consequences of his injury, the plaintiff believed he would have trouble with being regular, reliable, attentive, and being able to perform all of the required duties of the positions listed in the Work Co report.
88 In examination-in-chief, the plaintiff confirmed that it was very difficult working even sixteen hours a week with Linfox because of the constant pain in his spine. It would still be difficult to work those hours. He would not be reliable because of constant pain in the spine, and he would not manage more than three hours’ work per day.
89 The plaintiff disagreed with Dr Ho, who examined him on behalf of the insurer, that he was fit for full time work, as he had tried three days of light duties a week and did not cope.
90 In re-examination, the plaintiff explained that his spine has never been good since the incident, and he has never been able to work without pain.
Current Treatment
91 Mobic and Panadeine Forte taken by the plaintiff since December 2007 afford minimal transient benefit in relieving his constant though varied pain.
92 The plaintiff deposed that Dr Sheriff had previously advised him about the side effects of strong painkilling medication. In cross-examination, when it was put to the plaintiff that he had four prescriptions for those medications from Dr Sheriff in the last two and a half years, the plaintiff said he was taking medication every four or five months. He only takes that medication when he has strong symptoms. He did not know how to calculate the frequency with which he took this medication. Symptoms could last from one to two, to three days. He last took Mobic for strong symptoms two days before the hearing, and maybe a week before that, he had taken Panadeine Forte.
93 The plaintiff agreed he told Dr McIntosh in August 2008 that he was taking one Panadeine Forte and one Mobic tablet a week at that time.
Current Pain and Disability
94 The plaintiff continues to experience constant though varied pain in his spine, in particular his neck and lumbar spine, with pain shooting or radiating into his arm and left leg.
95 The plaintiff confirmed in examination-in-chief that he is more affected in his neck and the upper part of his back.
96 The plaintiff’s pain has stabilised since he ceased work with Linfox in late 2008.
97 In cross-examination, the plaintiff described spinal pain all the time, with different intensity. He has continuing problems with restriction of neck movement. The level of restriction is very changeable. On the day of the hearing, his neck movement was pretty good.
98 The plaintiff demonstrated in the witness box that he could move his neck to 45 degrees to either side, and to 20 to 30 degrees forwards and backwards.
99 When asked how he had a full range of movement on some medical examinations and he was somewhat restricted when demonstrating in the witness box, the plaintiff explained that if he can move his head, and his neck was not stiff, there was no restriction. He could not recall if he had shown a full range of movement of his neck to most examiners.
100 The plaintiff agreed that was the case when he saw Mr Barrett and “yes and no” it was the case when examined by Dr Blombery.
101 The plaintiff’s neck is not stiff all the time. Sometimes he can move it from side to side freely. On a bad day there is pain, inflammation and stiffness altogether.
102 The plaintiff confirmed he had back pain all the time in his upper back, between his shoulder blades, and in his lower back as well.
103 When the plaintiff saw Dr Ong for the Linfox medical examination in December 2007, he could not remember if he had a bit of neck tenderness, almost full movement of the neck and some slight neck stiffness.
104 The plaintiff agreed that when he saw Dr Ong in November 2008, he had a full range of neck movement, and pain at the extremes.
105 The plaintiff denied he had not mentioned any back problems to Dr Ong, Dr Sheriff, Dr Haw and Dr Bong, having told them he had neck and upper back pain.
106 Whilst Mr Battlay reported that the plaintiff told him he had no pain in his lower back and no longer had pain between his shoulder blades, the plaintiff said he had described his condition to Mr Battlay as “pressure” in those areas: “it was an uncomfortable situation.”
107 The plaintiff agreed that when he saw Mr Barrett he had a good range of movement, but not full movement.
108 The plaintiff continues to experience difficulty getting a restful night’s sleep due to pain. In cross-examination, he confirmed he has problems sleeping at night but does not take prescription medication as he can sleep during the daytime.
109 The plaintiff continues to have significant problems with mobility. On his general practitioner’s advice, the plaintiff still tries to be as active as possible within his significant physical limitations. He tries to walk, as and when he is able, but his tolerance for distance can vary from time to time and he tends to find some days are particularly bad. He pays for increased activity with more pain afterwards, despite taking regular medication.
110 The plaintiff is frustrated by restricted physical endurance and reliability and his general dependence on others to perform tasks he previously was able to do.
111 As a result of his spinal injury, the plaintiff tends to only take public transport to necessary appointments and run errands at the local shopping centre. He experiences increased neck and back pain on public transport, in particular, during peak hour when he has to stand when there are no seats available, and he avoids travelling at that time.
112 Because of his spinal injury, the plaintiff is unable to engage in desired sexual activity, which is frustrating for him. As a result, he feels less adequate as a man, and is concerned about the added strain on his relationship with his partner.
113 At times, as a result of his spinal condition, the plaintiff experiences difficulty performing personal hygiene activities, such as putting his head back to gargle. As a result of his injury, he has also experienced problems with urination and sensation to this effect. He tends to experience increased pain if he coughs, sneezes, or strains at the toilet.
114 The plaintiff’s ability to enjoy social activities, going out with family and friends, going fishing or playing sport, such as basketball, and socialising at home, continues to be affected by his work injury, because he no longer gains joy from those activities, as he is often preoccupied by his pain.
115 Whilst the plaintiff enjoyed work as painter in Bosnia, and did so for leisure on coming to Australia, since the incident, he has generally avoided painting and drawing, as he experiences pain in his spine looking down and standing or sitting in one position for long periods, and he also has difficulty concentrating as a result of the pain caused by his work injury.
116 The plaintiff tries to vary his movements and posture, and tends to avoid heavy lifting, repeated heavy pulling or pushing, overreaching with his arms, prolonged flexion of his neck, and strenuous arm movements, in particular above shoulder height.
117 The plaintiff’s ability to do domestic activities has been very significantly affected by the incident injury. Even though he no longer needs to save himself for the continued stresses and strains of repeated return to work efforts, the plaintiff remains dependent upon the assistance of others with meal preparation, cleaning, laundry, and outdoor activities that he was previously able to perform independently, as well as his work duties. The plaintiff is frustrated and embarrassed by his predicament and feels like a burden on others and he feels much older than he should.
118 The plaintiff’s earnings details are as follows:
Financial Year Ending Employer Gross Earnings
30 June 2002 Westgate Logistics $ 2,303.00
Adecco Australia Pty Ltd $37,182.00 $39,485.00
30 June 2003 Westgate Logistics $31,399.00 30 June 2004 Westgate Logistics $37,799.00 30 June 2005 Westgate Logistics $36,167.00 30 June 2006 Westgate Logistics $34,066.00 30 June 2007 Westgate Logistics $36,652.00 30 June 2008 Westgate Logistics $14,820.00
Linfox $20,350.00 $35,170.00
Lay Evidence
119 Ms Staka Jeftic swore an affidavit on 3 August 2010. She met the plaintiff more than twenty years ago whilst in Bosnia, and they migrated to Australia together in about 1996, with high hopes of building a new life.
120 Prior to the incident, she did not recall the plaintiff having any significant back problems or any psychological issues. The plaintiff was a capable, caring and creative man who enjoyed an active lifestyle with her and their many friends. He used to enjoy playing basketball and going fishing, as well as attending to household chores. She expected him to work until retirement age.
121 Before the incident, the plaintiff told her that his work was physically demanding, but he enjoyed it. Work kept him fit and active while providing a steady income.
122 After the incident, the plaintiff had a couple of days off work before returning and attempting normal duties for a few days. She recalled the plaintiff coming home and complaining of exacerbated spinal pain. Consequently, he began working with lighter goods until August 2007, when Linfox took over the first defendant.
123 Even when working on light duties, the plaintiff would come home in pain and spend most of the night on the couch. He was frustrated with doctors not offering him a solution. He continued to take regular medication to ease his pain.
124 The plaintiff told her he feared Linfox would not allow him to keep working if he did not do his old job. She recalled the plaintiff having to take a further five months off work shortly after resuming his pre-injury duties with Linfox as a result of this pain. She recalled the plaintiff then returned to work on a graduated basis, performing modified sheltered duties. The plaintiff told her of problems with that work, and as a consequence, he ceased work altogether in or about October 2008.
125 Since the said date, she has witnessed the plaintiff showing anguish and pain on his face as he tries to do particular tasks. He has continued to tell her about his neck and back pain. He seems to look generally weak.
126 She has tried to persuade him to be as active as possible, but she has witnessed the pain he experiences following regular activities, such as prolonged standing, walking or shopping, and that the plaintiff is worse in the colder weather.
127 The plaintiff has difficulty travelling on public transport, and avoids doing so during peak periods.
128 The plaintiff has often told her he has trouble sleeping due to neck and back pain, and as a result of that he is often lethargic and irritable. She regularly wakes up in the night and notices the plaintiff is awake.
129 Prior to the said date, the plaintiff helped with household tasks, such as vacuuming and moving furniture, but since then he had avoided such heavy activities because of increased back pain.
130 Since the said date, the plaintiff has had difficulty helping her out around the house. She attends to home duties, as he gets increased pain if he does so.
131 Prior to the incident, the plaintiff also regularly attended to home maintenance, as well as working in his job. However, since then he has avoided those activities. It frustrates the plaintiff to be hindered physically when, prior to the incident, he was able to complete far more physically-demanding activities regularly and reliably, as well as maintain normal work duties.
132 Since the incident, the plaintiff has not done as many social or recreational activities. He is embarrassed by his incapacity and avoids social contact with others. Whilst recalling how much the plaintiff enjoyed drawing in Bosnia, she does not recall him painting or drawing at home since his work injury, and he has lost the joy he used to gain from that hobby.
133 Since the incident, the plaintiff is no longer as active as he used to be, and seems like a completely different person. He has lost his self-esteem and tends to get upset more easily, and is often upset about the change in his lifestyle.
134 The plaintiff has lost contact with many of his friends. He has lost much enjoyment in his life, and is no longer the active man he was before the incident.
135 Robert Puljic, the plaintiff’s former team leader whilst working for the first defendant, swore an affidavit on 19 August 2010.
136 Mr Puljic is currently employed by Linfox as a forklift operator. He was employed by the first defendant for about nine years, and worked with the plaintiff for about seven years as his team leader.
137 Mr Puljic generally saw the plaintiff at work every day. He did not know much about the plaintiff’s personal life, but observed he was a hardworking man who, prior to the said date, regularly volunteered for overtime.
138 On the said date, Mr Puljic was walking across the same aisle in which the plaintiff was operating his tugger, about 200 metres behind him. He recalled hearing a loud noise and turned towards the plaintiff, and saw that a forklift had hit his tugger from behind. He rushed to the plaintiff to see if he was alright.
139 Immediately after the incident, the plaintiff complained of headaches and exacerbating pains in his neck and back. Mr Puljic was the first defendant’s first-aid officer, and management asked him to take the plaintiff to the work doctor at the Altona Medical Centre.
140 Prior to the incident, the plaintiff was an active and capable man who enjoyed his work and had many friends at work. Management often requested that the plaintiff increase his work rate, and he did not appear overly bothered by that, which was typical of his laid-back and relaxed nature. He would have expected the plaintiff to have kept working for as long as possible.
141 Prior to the incident, the plaintiff was good natured and talkative, and seemed generally happy at work. Since that time, the plaintiff had not been the same person, being less social. He tended to lose his temper easily. He was also more anxious about vehicles, particularly forklifts.
142 Further, the plaintiff’s physical appearance began to deteriorate after the incident. He generally looked weak and complained constantly of headaches and neck and back pain.
143 The plaintiff attempted to return to work on numerous occasions. He was assigned to lighter duties about a week after the incident, but he was still in significant pain. The plaintiff was made to return to his old duties in August 2007.
144 Mr Puljic recalled the plaintiff worked until the end of 2007 before a lengthy absence due to his work injury. He returned to work about five months later on a reduced hours’ basis, and could not continue working due to his neck and back pain, and had not worked since about October 2008.
The Plaintiff’s Medical Evidence
145 Dr Kohn, of the Westmed Medical Centre, first saw the plaintiff on the said date. The plaintiff told him that following the incident he had pains in his forehead and some pain in the lower back. There was no radiation of pain to his legs.
146 On examination, Dr Kohn noted the plaintiff had minimal tenderness over the lumbar spine with a full range of all back movements. He had no cervical spine tenderness and had a full range of all neck movements. He had no forehead tenderness. Central nervous system examination and all other examinations were normal, and the plaintiff was given reassurance.
147 The plaintiff returned to Dr Kohn later that day, stating he had seen another general practitioner and had x-rays of his lumbar spine which were apparently normal. The plaintiff complained of persistent headaches and examination was again normal. The plaintiff wanted further x-rays and these were arranged, including CT scans of the cervical and thoracic spine.
148 Dr Kohn last saw the plaintiff on 16 January 2006. He reported that Mr Haw felt the plaintiff may have aggravated a pre-existing damage to the C5-6 disc in the incident.
149 Dr Kohn noted that the plaintiff did not have any evidence of any pre-existing injury. He did not believe the plaintiff had any long-term injuries resulting from the incident. He thought the plaintiff had suffered a musculo-ligamentous strain. Dr Kohn thought the plaintiff should have recovered from any effects resulting from the incident in seven to ten days.
150 In Dr Kohn’s opinion, the plaintiff suffered minimal physical injuries in the incident. He felt, at the time of examination, the plaintiff had no physical symptoms supporting his claimed problems. Dr Kohn noted that whether this was a conscious or sub-conscious act would be for a psychiatrist to decide.
151 Mr Chris Haw, orthopaedic surgeon, saw the plaintiff once on 1 May 2006 on referral from Dr Kohn.
152 Mr Haw noted at the time of that assessment the plaintiff had slowly improved since the incident and was eighty per cent better but was still having problems when the weather was humid and warm. The plaintiff was still at work and kept working after having only two weeks off. At the time of the acute symptoms the plaintiff had only been on WorkCover for three or four days.
153 Clinical examination revealed the plaintiff had no neurological problems in the upper limbs but he was tender at C5-6.
154 Mr Haw noted review of the x-rays confirmed the plaintiff did indeed have some pre-existing problems at that level which was slightly narrowed, but in addition to some minor degenerative changes in the front of the upper thoracic disc, there was no other abnormality.
155 Mr Haw considered the plaintiff indeed injured his neck as a result of the incident. However, by the time of this examination, Mr Haw considered the plaintiff seemed to have largely recovered and he reassured the plaintiff that whilst periodically he might experience neck symptoms, the overall prognosis was good. However, the plaintiff was advised to try and avoid lifting awkward weights or weights in excess of fifteen kilograms.
156 In Mr Haw’s view, the plaintiff aggravated the C5-6 disc that was already slightly degenerate but he was largely recovering from the effects of that damage and Mr Haw considered that the overall prognosis was good and that it was unlikely to result in any long lasting permanent disablement.
157 The plaintiff first saw Dr Sheriff on 13 December 2007.
158 The plaintiff gave him a history that he worked as a store person lifting heavy boxes at Linfox. He felt neck pain radiating into his shoulders and arms and also described severe headaches. Initial examination did not reveal a neurological deficit. However, Dr Sheriff felt the plaintiff’s pain had a strong radicular quality.
159 The plaintiff was referred for an MRI scan.
160 Dr Sheriff noted the plaintiff had a past history of cervical and spinal injury in the incident, about which Dr Sheriff did not have precise details. He presumed the plaintiff made a partial recovery to return to fairly normal and heavy duties at Linfox from two weeks after the incident.
161 Dr Sheriff thought that the MRI scan of the cervical spine of 17 December 2007 suggested a C5-6 disc prolapse indenting the theca and, to a lesser extent, at C3-4. He felt the plaintiff needed a neurological referral for clarification.
162 In his more recent report dated 8 September 2010, Dr Sheriff concluded it was quite apparent the plaintiff had significant difficulty coping with his duties with Linfox and that he had great difficulty coping with his duties when relocated to Altona in August 2007. Further, he noted the plaintiff had made a tentative attempt to return to work, which was short-lived, in May 2008 as he was expected to work with a compactor. The plaintiff had tried to increase his hours but his neck pain worsened and he was referred for pain management following conciliation.
163 In Dr Sheriff’s view, the plaintiff remained fairly disabled to return to the workforce, and given his educational qualifications. He thought that future employment prospects were most unlikely. Dr Sheriff noted it was now evident from the history in the plaintiff’s statement with which he had been provided that the incident appeared to have a significant impact and it had set in motion many of the plaintiff’s symptoms. He considered the incident appeared to be an aetiological factor to the plaintiff’s current symptoms.
164 Dr Ong saw the plaintiff on 19 December 2007.
165 The plaintiff was referred to him after he sustained a workplace injury at Linfox from repetitive picking of boxes over two to three months. The plaintiff complained of progressive neck symptoms which started off mild and became more significant over that period of time.
166 It was noted that the plaintiff had a history of an old neck injury in the incident which resulted in a severely sprained neck which required prolonged treatment and recovery.
167 The plaintiff told Dr Ong that he had noticed the symptoms had recurred but Dr Ong found there was no focal neurology.
168 Dr Ong referred to the CT and MRI scans of the cervical spine showing a right-sided disc prolapse causing irritation to the nerve tissue at C5-6.
169 On examination, Dr Ong found the plaintiff had tenderness in his neck in the lower cervical spine from C4 to C7 and he also had a slightly stiff range with his movement. Neurovascularly, there was no compromise and the plaintiff’s shoulders were not affected.
170 Dr Ong diagnosed an exacerbation of the plaintiff’s neck injury with disc disease and cervical nerve root irritation which was the result of the nature of the plaintiff’s repetitive work on the background of the incident.
171 Dr Ong commenced treatment with anti-inflammatories, rest, physiotherapy and restricted duties, with reduced weight lifting and avoiding repetitive neck twisting and bending movements for the moment.
172 Dr Bong and Dr Kinloch both saw the plaintiff on 24 November 2008 and reported back to Dr Sheriff following that examination.
173 The plaintiff had then been off work for three weeks because his pain was aggravated doing light duties, including sorting labels.
174 On examination, there were no tender points on the back of the plaintiff’s neck, he only experienced pain at the end point when he rotated his neck sideways and up and down and there were no neurological signs.
175 Dr Bong advised he had discussed the plaintiff with Dr Kinloch, who thought there was nothing to offer that would help and the recommendation was that the plaintiff should look for alternative sedentary work which would include the opportunity to sit so as not to aggravate his pain. No review appointment was made.
176 The plaintiff saw Mr Barrett, orthopaedic surgeon, in late January 2010 on referral from Dr Sheriff.
177 The plaintiff told Mr Barrett of the incident, after which he had two days off work and then a further four days off work before returning to fulltime work with the first defendant.
178 The plaintiff told him he continued to complain of symptoms of neck and lower back pain, he requested light work and was given it only for the subsequent two years, during which time he took intermittent time away from work as his symptoms fluctuated.
179 In July 2007, the first defendant was sold to Linfox and the plaintiff was put on full work in a new warehouse, working for some three months, before ceasing due to increased neck and back pain.
180 The plaintiff was then off work for five months before returning to light work and undergoing physiotherapy.
181 The plaintiff returned to part time light work in May 2008, ceasing work altogether in November 2008. During that time, the work involved checking stickers in the warehouse stock and involved continuous walking about the warehouse for eight hours a day.
182 Since then, the plaintiff had complained of neck pain and stiffness, aches and pains in both arms, intermittent lower back pain and left leg and calf pain. He required ongoing Panadeine Forte and Mobic intermittently but not on a daily basis.
183 On examination, the plaintiff was moving about fairly normally, bending well. Examination of the cervical spine revealed normal general contours and movements were near full in all directions and produced some mild discomfort only if forced at the various levels. No cervical tenderness was noted, while neurological examination of the upper limbs revealed normal power, reflexes and sensation in a symmetrical distribution.
184 Examination of the thoracic and lumbar portions of the spine showed normal general contours and again the plaintiff’s spinal movements were near full in all directions and all produced some mild generalised discomfort at the limits only. No significant spinal tenderness was noted. Straight leg raising was to 70 degrees on the left and 80 degrees on the right. Power in the lower limbs was normal and symmetrical.
185 Having studied the various investigations, Mr Barrett noted all films and scans appeared to be normal, or near normal, excepting there was a mild posterior disc bulge at C5-6 disc level, mainly on the right, touching but not indenting the spinal cord at that level.
186 Considering the plaintiff’s work history and his subsequent and ongoing symptoms, Mr Barrett expected that there would be some physical changes in the plaintiff’s spinal column which had been extensively investigated in this series of radiological films.
187 Mr Barrett thought the plaintiff was certainly strong on symptoms but significantly lacking in physical and neurological signs of spinal damage and, for those reasons, there was really no orthopaedic treatment that could be offered to him to relieve his ongoing symptoms.
188 The plaintiff saw Dr Charles Castle, occupational physician, on referral from Dr Sheriff on 4 March 2010.
189 On examination, the plaintiff told Dr Castle that his neck was not functioning properly, and that there was pain in his spine and stiffness in his neck. The plaintiff told him that light duties involved a lot of turning of his head and work started to damage him after two to three hours. Lots of walking aggravated his neck pain after two to three hundred metres. Lots of bending also aggravated his condition.
190 The plaintiff complained of pins and needles in his right middle finger after he had done light duties for five and a half months. Pain at that stage was five to six out of ten.
191 On examination, there was a full range of movement of both shoulders. The plaintiff’s neck and back were tender and there was a restricted range of motion. Dr Castle prescribed Panadeine Forte and Mobic.
192 The plaintiff was referred by Dr Sheriff to Dr Peter Blombery, consultant vascular physician, in August 2010.
193 The plaintiff told Dr Blombery of the incident and that he had seen Mr Haw, who advised him to avoid heavy lifting.
194 The plaintiff told Dr Blombery that by 2007 he was having to take almost a day off work every week because of the severity of his pain, and he stopped work in December 2007 and attempted to try to return to work in 2008 on reduced hours but then had to stop work.
195 The plaintiff told Dr Blombery he had ongoing pain in his neck which radiated to the shoulders and arms, as well as the upper back. He had lower back pain present only occasionally and his other problems related to the left foot.
196 On examination, the plaintiff moved freely and there was a full range of neck movement. He was a little tender on pressure over C6. Reflexes were intact and symmetrical, and his legs were normal in appearance. The plaintiff could flex his lumbar spine to 80 degrees.
197 Dr Blombery thought the plaintiff appeared to have a pain sensitisation phenomenon. Dr Blomberry was surprised by the reasonable range of movement that the plaintiff had in the affected areas. He gave the plaintiff a trial of Epilim to modulate pain perception to see what impact that had, but he noted that otherwise the plaintiff may have to come to terms with his symptoms, and he would see him again in a month’s time.
198 Dr Blombery provided a report to the plaintiff’s solicitors relating to this examination.
199 Dr Blombery advised that the plaintiff had sustained a full hyperextension injury of his back and neck, as well as direct trauma to the lumbar spine in the incident. He noted the plaintiff had been left with ongoing pain in that area and in particular, pain in the cervical spine.
200 Dr Blombery noted imaging had shown partial disc prolapse at C5-6 but he thought it was almost certain this was pre-existing the injury. He considered that the incident injury had resulted in pre-existing asymptomatic degenerative changes becoming symptomatic in both the neck and back. Dr Blombery thought the plaintiff had a pain sensitisation phenomenon which was well described in people after back injuries. He considered, in the plaintiff’s case, there appeared to be some secondary anxiety and depression which was tending to enhance his experience of pain.
201 Dr Blombery thought that until this was resolved, there would be no change in the ongoing disability affecting the plaintiff’s back and he would almost certainly be unable to work.
202 In terms of the prognosis, as it was five years since the injury, Dr Blomberry considered that the plaintiff’s prognosis for recovery was relatively poor. Dr Blombery thought the plaintiff was not able to return to his previous job as a storeman, either now or in the future. With retraining, he thought that the plaintiff would be able to do some form of light duties which did not involve any significant lifting, but given his educational development, Dr Blombery thought this would be difficult.
203 Dr Blomberry was also not optimistic as to the plaintiff’s prognosis because the plaintiff had already attended a pain management clinic with Dr Kinloch in 2008 when it was felt that there was little available in the way of specific treatment.
204 In a supplementary report dated 9 September 2010, Dr Blombery advised that permanently the plaintiff would not be able to perform light duties for more than eight to twelve hours a week in the longer term and any hours above that would be liable to make his back pain worse and eventually prevent him from working at all.
Medico-Legal Examinations
205 Mr Peter Battlay, orthopaedic surgeon, carried out an impairment assessment of the plaintiff on 24 November 2008 on behalf of GIO.
206 On examination, the plaintiff told Mr Battlay there was a lot of pain at the base of his neck at the C5-7 level and there was still pain radiating along the suprascapular muscles bilaterally, with a feeling of inflammation, stiffness and discomfort in that area.
207 When asked about his lower back, the plaintiff said there was no pain there at all and even the pain between his shoulder blades he no longer experienced.
208 On examination, the plaintiff performed a full range of pain free movements of the thoracolumbar spine. There was no evidence of nerve root irritation or a lower limb neurological loss. Neck movements were performed in a tentative manner and there was some discomfort at the extremes of the range referred to the posterior neck and suprascapular muscles bilaterally. There was no evidence of cervical nerve root irritation or an upper limb neurological loss.
209 Mr Battlay had available to him various films and x-rays of the cervical spine taken in 2005.
210 Mr Battlay presumed the plaintiff suffered a soft tissue injury to his neck in the incident, in the context of longstanding pre-existing degenerative changes in the cervical spine at C5-6. He noted the plaintiff had had a fluctuating progress with that injury, and given the length of time that had elapsed since the incident, he thought the plaintiff had a permanent impairment of the cervicothoracic spine but not the lumbar spine.
211 Mr Battlay considered that the plaintiff had mechanical pain in the cervical spine through an unresolved soft tissue strain and probably disc derangement at C5-6. He thought there was no evidence of any ongoing symptomology in the lumbar spine.
212 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on behalf of the defendants’ solicitors on 26 July 2010.
213 At that stage, the plaintiff was taking Panadeine Forte and Mobic on an as necessary basis – the requirement for which seemed to vary.
214 On examination, the plaintiff reported his neck was stiff and inflamed. He experienced radiation into both shoulders, together with complaints of pain in his elbows. The plaintiff described a “pressure” in his lower back, particularly if walking.
215 On examination of the plaintiff’s neck, there was a full range of movement. Neurological testing in both upper limbs was normal. The site of the plaintiff’s neck pain was indicated to be around the region of the C7 spinous region process posteriorly.
216 The plaintiff indicated the sensation of “pressure” was in an area of the lower thoracic and upper lumbar region. Specific examination of the lumbar spine revealed no indication of any localised pain and the plaintiff’s range of thoraco-lumbar flexion was to 70 degrees. Extension was mildly restricted to 20 degrees. Neurological assessment of both lower limbs was normal.
217 Mr Jones had available x-rays of December 2005 and the MRI scan of 17 December 2007.
218 Mr Jones considered the plaintiff suffered from mild degenerative disease affecting the cervical spine, with evidence of small disc prolapses at two levels in his neck, particularly at C5-6.
219 In the thoracic spine the plaintiff had some evidence of mild spondylosis on the most recent x-rays available, performed in 2005. Mr Jones considered there were likely to be some mild degenerative changes affecting the plaintiff’s lumbar spine.
220 Mr Jones thought that the progress of the plaintiff’s neck was one of varying degrees of possible neck pain and stiffness. In his view, in the thoracic and lumbar spine, slowly deteriorating thoracic and lumbar back stiffness may occur.
221 Mr Jones noted that the plaintiff described what appeared to be an extension injury to his neck and possibly lower back. In the absence of any previous history to this effect, Mr Jones thought it possible the incident as described may have aggravated what Mr Jones believed to have been some minor degenerative disc disease at C5-6. Likewise, in the thoraco-lumbar region, he thought that the plaintiff may have suffered an extension injury causing a minor soft tissue injury to his thoracic and lumbar spine.
222 Mr Jones did not believe the plaintiff’s thoracic or lower back complaint had been caused or significantly aggravated by the incident. He had no doubt that the C5-6 degenerative disc problem pre-dated the incident in spite of the plaintiff’s apparent absence of any symptoms. He could not exclude the incident, given the circumstances, having aggravated this complaint and possibly being the cause of some minor residual symptoms in the plaintiff’s neck. He noted clinically, however, the plaintiff had an excellent range of neck movements and there was no evidence currently of any neurological signs.
223 In Mr Jones’ view, the plaintiff reported disproportionate disruption on his day- to-day activity and enjoyment of life generally. He thought that the plaintiff’s level of symptoms, in contrast to his physical signs, seemed somewhat out of all proportion to his complaints.
224 Mr Jones considered it possible some of the plaintiff’s current neck symptoms may have resulted from an aggravation to some mild pre-existing degenerative disc disease at C5-6. He considered, from the appearance of the 2005 x-rays, the plaintiff had pre-existing degeneration at this level prior to the incident.
225 Mr Jones did not believe the plaintiff’s thoracic lower lumbar complaint affected his work capacity. He thought the plaintiff’s neck condition would preclude him from work requiring extremes of neck movement or particularly requiring heavy pulling or pushing – work which had the capacity to aggravate his neck symptoms.
226 In spite of the plaintiff’s symptoms, Mr Jones believed he was fit to return to suitable work not requiring extremes of neck movement or heavy pushing or pulling. He considered the plaintiff had a permanent incapacity for such work.
227 Having read the Co-Work report, Mr Jones thought the plaintiff had the capacity to undertake work as a packer/light goods and signwriter/production assistant. He also believed the plaintiff would be capable of work as an inventory controller in spite of his neck condition. He believed the weights the plaintiff would be required to lift were within the limits of his capacity.
Medical Certificates
228 On 12 December 2005, Dr Kohn diagnosed muscular strain, and certified that the plaintiff would be expected to be fit for normal duties that day.
229 Dr Bertram, having examined the plaintiff on 12 December 2005, certified him unfit for any duties for one day. Dr Bertram noted that the plaintiff was hit from behind by a forklift and suffered neck strain/headache.
230 On 13 December 2005, Dr Al-Zaini certified the plaintiff fit for alternative duties for three days, diagnosing back pain and muscle spasm.
231 On 30 August 2010, Dr Sheriff provided a total incapacity certificate for the period based on severe cervico-dorsal and lumbar pain with radiation.
Investigations
232 An x-ray of the lumbosacral spine was organised by Dr Al-Zaini on 14 December 2005. It was reported that disc spaces did not appear to be narrowed. Sacroiliac joints appeared in normal alignment on the left, that on the right being indistinct and may/be partly fused. There was no bone trauma to the lumbar region identified.
233 A CT scan of the brain and cervical and thoracic spine was carried out at Dr Kohn’s request on 22 December 2005.
234 It was noted the cervical and upper thoracic segments were tilted to the left from the alignment of the lower thoracic segment. Disc space narrowing appeared present at the C5-6 level. Cervical foraminae were clear. Bony cervical ribs were not present. Thoracic disc spaces appeared preserved. There was minimal spondylosis seen in the mid and lower third.
235 An MRI scan of the cervical spine was organised by Dr Sheriff on 17 December 2007. It was concluded there was moderate right posterolateral C5-6 disc prolapse indenting the theca, contacting the spinal cord without myelomalacia. There was contact with the exiting right C6 nerve root. There was minor left posterior paracentral C3-4 disc prolapse indenting the theca and not causing nerve root compromise.
236 A plain x-ray of the cervical spine and an ultrasound of the left shoulder were carried out at Dr Jithoo’s request on 25 February 2008.
237 On the ultrasound there was no abnormality seen but it was noted on occasion, minimal degrees of inflammation would not show on ultrasound.
238 In terms of the cervical spine, there was preservation of normal vertebral body alignment. There was a good range of movement between flexion and extension and there were no signs of instability. There was no disc space narrowing. The vertebral bodies and posterior elements had a normal appearance.
239 An MRI scan of the thoracic and lumbar spine was carried out at the request of Dr Sheriff on 7 March 2008.
240 There was no significant decreased high T2 intervertebral disc signal seen throughout the thoracic or lumbar spine to suggest disc desiccation or degeneration. There was no definite disc prolapse or canal stenosis seen throughout the thoracic or lumbar spine. There was no significant spondylosis and disc spaces were well-preserved. The spinal cord terminated at the L1 level. No foraminal stenosis was seen over the lumbar region. No definite pars defect or spondylolisthesis was present. There was no bone marrow or paraspinal soft tissue signal abnormality seen, especially over the lumbar region. There was no spinal cord compression or signal abnormality detected.
241 It was concluded there was no relevant or significant disc disease seen throughout the thoracic or lumbar region.
The Defendants’ Medical Evidence
242 On 13 December 2005, the plaintiff saw Dr Al-Zaini at the Millennium Medical Centre. The plaintiff complained of back pain below the thoracic area after an accident at work the previous day.
243 On examination, the plaintiff’s back was not swollen or hot. Restriction was present. There was no crepitus. There was a restricted range of movement. It was noted the plaintiff insisted he have an x-ray of his back but Dr Al-Zaini tried to explain there was no need for the x-ray but the plaintiff was very difficult. An x-ray of the lumbosacral spine was requested.
244 The plaintiff saw Dr Al-Zaini again on 14 December 2005. Dr Al-Zaini checked the x-rays of the lower back, noting no abnormalities, and he reassured the plaintiff. The reason for the visit was back pain, mostly muscle spasm, and a letter was created regarding WorkCover.
245 Dr Eckel saw the plaintiff at the same clinic on 20 December 2005. He agreed with Dr Al-Zaini that the plaintiff was a very difficult patient. He noted the plaintiff now wanted x-rays of his back and his head and the rest of his spine. The plaintiff was complaining of “S1” pain on rotating his neck. He had a full and free range of movement of his cervical spine and moved his neck quite freely when talking. He was getting “S1” pain in both temples. The plaintiff was reassured it was a tension headache. The plaintiff had a full and free range of movement of the spine and he could flex to the ankles.
246 Dr Eckel reassured the plaintiff he could find nothing wrong with him. He thought the plaintiff did not need further x-rays and CT scans, et cetera. There was no head injury. He recorded that the plaintiff saw another doctor beforehand in Droop Street and noted “why hasn’t he gone back to him? Patient was not happy and left”. In Dr Eckel’s opinion, the plaintiff had no significant injury.
247 The plaintiff attended the Millennium Medical Centre on the following dates when there was no mention by him of any spinal problems – 27 April, 7 June, 27 July and 1 August 2006, 8 January, 13 June, 23 August and 13 November 2007.
248 On 18 December 2007, the plaintiff saw Dr Emezie at the Millennium Medical Centre. There was a note:
“Neck pain, feels occasional spasm around the neck. Recently had mri which showed sli disc prolapse. said to have had work related injury about 2 yrs ago. o/e nil obvious neuro deficit. For Dr Sheriff to follow-up the MRI.” [sic]
249 Dr Emezie added Tramal and Panadeine Forte to the medication and prescriptions were printed.
250 Between December 2005 and December 2007, Panadeine Forte was prescribed at the Millennium Medical Centre on two occasions for flu.
251 There were medical certificates from the Millennium Medical Centre noting sickness for one day on 6 June and 14 November 2006, 8 January, 13 to 15 June, 23 August, 24 August, 13 to14 November and 18 to 24 December 2007.
252 The Westmed Medical Centre notes were also tendered.
253 The plaintiff saw Dr Kohn on 12 December 2005. The plaintiff reported a work accident that morning when hit by a forklift:
“Hit his back, bent over backwards, nearly in half. Complained of pain in the forehead and minimal lower back [pain]. No radiation. There was minimal tenderness over the lumbar spine with a full range of back and neck movements. No frontal tenderness. Reassurance – no insight into headaches.”
254 On examination with Dr Kohn on 21 December 2005, it was noted the plaintiff had x-rays of the lumbar spine with another general practitioner. There were no abnormalities noted.
255 The plaintiff claimed frontal headaches from neck pain with “?crepitus”. It was noted:
“Minimal lower back discomfort. On examination, lumbar spine full range of movement, no tenderness, thoracic and cervical spine all totally normal.”
256 It was also noted that the plaintiff wanted an x-ray of the rest of his back and his head.
257 The Westmed file also included a letter from Mr Haw to Dr Kohn dated 1 May 2006.
258 In that letter, Mr Haw advised the plaintiff clearly had a significant injury in the incident and he suspected the plaintiff either damaged or aggravated pre- existing damage to the C5-6 disc which Mr Haw agreed was slightly narrowed.
259 In Mr Haw’s opinion, however, apart from some minor degenerative change in the front of the upper thoracic disc, there was no other abnormality. He basically reassured the plaintiff that whilst he periodically might experience symptoms from the neck, the overall prognosis was good, but he advised him to try and avoid lifting awkward weights or weights in excess of fifteen kilograms.
260 In Dr Ong’s report of the examination carried out for Linfox in November 2007, he recorded that the plaintiff had a full range of cervical and thoracolumbar movement. Straight leg raising was to 90 degrees on both sides.
261 Dr David Ho re-examined the plaintiff on 27 August 2008 for medico-legal purposes, having earlier seen him on 23 April 2008 and conducted a worksite assessment on 1 May of that year.
262 At that stage, the plaintiff told Dr Ho that on 18 May 2008 he had returned to work on lane marshalling as agreed, but instead was put on the cardboard compacter. After working in that role for four full days, the plaintiff stopped working and was sent back to lane marshalling, where he was supposed to be working.
263 It was noted that in the following month the plaintiff would be working four full days. Treatment had been Panadeine Forte and Mobic as needed. The plaintiff complained of difficulty if he moved his head too much, especially when looking up and down too much. The plaintiff claimed he was getting worse as he felt pressure in his neck. The plaintiff attributed that problem to increased hours but it was noted at that stage he was working three days a week.
264 The plaintiff complained of problems with his neck. Dr Ho noted the plaintiff could not say anything about his lower back and then said there was nothing in his lower back.
265 Dr Ho pointed out to the plaintiff that he was 95 per cent healthy.
266 On physical examination, Dr Ho noted the plaintiff was an intense person preoccupied with his perception of injury and incapability. Alignment and curvature of the vertebral spine were normal. There was no tenderness palpated in the plaintiff’s neck or lower back. Active cervical and thoracolumbar spine movements were pain free to full range. There was no abnormality in relation to the shoulder and upper limbs.
267 Dr Ho stated that the plaintiff reportedly had sustained a soft tissue whiplash injury to his neck and back in the incident. The plaintiff had been off work for four months when last seen. At that time, Dr Ho believed the plaintiff had recovered well from the recent exacerbation of an underlying degenerative spondylosis which would have predated his employment with Linfox.
268 Dr Ho noted the plaintiff’s duties as a lane marshalling person did not involve heavy lifting or manual handling and hence ensured the plaintiff’s recovery. Currently the plaintiff reported more stiffness in his neck than during summer. The plaintiff did not have any pain in his neck or symptoms in his arms.
269 Dr Ho thought clinical examination was essentially normal and that the plaintiff had recovered fully from the effects of the incident. Despite his perception of ongoing injury and incapacity, Dr Ho believed the plaintiff had recovered fully and was currently fit for full time work on all duties within his age, skill and level of physical fitness.
270 Dr Ho considered the plaintiff capable of working full time hours on normal duties. However, given the plaintiff’s current perception, he thought it prudent to increase the plaintiff’s hours to full time over four weeks with a gradual upgrade to tugger driving and selected normal duties with increasing weight limit.
271 Dr Ho concluded the plaintiff’s prognosis remained favourable without any likely permanent impairment from the effects of the incident
272 Dr Wijeratne, neurologist, examined the plaintiff on referral from Dr Sheriff in January 2008.
273 The plaintiff told Dr Wijeratne that since the incident he had been experiencing pain in his back and head. After initially very severe pain for three to four hours, the pain settled. However, he still had mild discomfort in his neck and head with restricted movement, and decided not to work for a week or so.
274 The plaintiff told Dr Wijeratne that since September 2007, he had been asked to perform heavy work again with which he developed significant pain in his neck and back. In December 2007, he decided to stop work as he could not cope.
275 Dr Wijeratne noted that the MRI scan at that time revealed a moderate right posterolateral C5-6 prolapse indenting the theca contacting the spinal cord without myelomalacia.
276 The plaintiff told Dr Wijeratne that at present his pain was bearable with occasional Panadeine. However, there were some days when he experienced significant pain in his back and forehead.
277 On examination, neck movements were reasonable with no significant restriction. Assessment of the upper and lower limbs revealed normal tone, power, coordination reflexes and sensory assessment.
278 Dr Wijeratne also looked at the MRI films and advised he had taken the liberty of referring the plaintiff to Mr Jithoo, neurosurgeon, to seek his opinion on the further management of the plaintiff.
279 The plaintiff was re-examined by Dr McIntosh, consultant orthopaedic surgeon, for medico-legal purposes on 6 August 2008. Dr McIntosh had previously seen the plaintiff on 30 April 2008.
280 The plaintiff told Dr McIntosh of the incident, being on light duties thereafter and managing reasonably well with some pain. The plaintiff advised of having problems on heavier work in 2007, leading to him stopping work on 11 December 2007.
281 At that stage, the plaintiff was working three days a week doing lane marshalling. The plaintiff told Dr McIntosh he became very tired by the end of the day and he had particular problems looking up and down with his head. He was then taking a Panadeine Forte tablet about once a week, and Mobic on a similar basis.
282 On examination, there was a full range of movement of the cervical spine and no tenderness or muscle spasm. There was full movement of the shoulders and no abnormality in the upper limbs.
283 The plaintiff complained of persisting neck pain, although he started to return to work doing light activities part time.
284 Dr McIntosh concluded, in light of the plaintiff’s full movement with no tenderness or spasm in his neck and no other abnormality, and the presence of degenerative change only in the cervical spine, the plaintiff had recovered from the effect of the incident injury. He thought the plaintiff’s persisting symptoms were due to underlying changes.
285 In Dr McIntosh’s opinion, the plaintiff could increase his activity further. He thought that the plaintiff was fit to do a wide range of light to moderate physical activities but should avoid very heavy work and repetitive lifting and bending.
286 Dr McIntosh thought those continuing restrictions were related to the underlying degenerative changes and not a work-related injury in 2007. He concluded that, on the balance of probabilities, the plaintiff’s present condition was a pre-existing constitutional underlying condition and the aggravation had now ceased and the effects of the work-related injury were temporary.
287 Dr McIntosh noted the plaintiff stated he was able to do the work prior to Linfox taking over the company, and that the plaintiff’s condition was aggravated by heavy work in July 2007.
288 Dr McIntosh thought the plaintiff would be able to do his original light to moderate work but would have difficulty doing heavy work. He considered the plaintiff could do a wide variety of activities, but should avoid heavy work and repetitive bending and lifting.
289 Dr McIntosh considered the plaintiff should increase his activities to full time over the next six weeks and that he did not require any treatment. He thought his prognosis was good, although he would need to continually avoid heavy and aggravating factors.
Other Evidence
290 In his undated résumé, the plaintiff set out he spoke Serbian, English and Russian. In terms of his educational background, he completed secondary school in Yugoslavia in 1980 and completed the first year of a law degree in 1983.
291 Between 1982 and 1990, the plaintiff was self-employed as an artistic painter in Yugoslavia. In 1986, he worked as a barman.
292 Between 1996 and 1997, the plaintiff did a Certificate IV in Spoken and Written English at the AMES Centre in Footscray.
293 The plaintiff did a Skillmax course in 1997 and later that year, a work experience placement at Signcraft. In 1999, he worked in the formal wear hire area and then commenced work with the first defendant in 2000.
294 The plaintiff described his work skills as: excellent communication and customer service skills; creative flare and artistic abilities; well-developed knowledge of arts, materials and equipment; keen and eager to learn new skills; quick learner; excellent organisational skills; reliable, punctual and honest.
295 A questionnaire was completed by the plaintiff at the time of the Linfox employment medical examination carried out on 21 November 2007.
296 The plaintiff completed the form on that date. He said “yes”, that he had been in an industrial accident, “hit by a forklift drive”. He advised he had received worker’s compensation for four days. He answered “no” to having suffered from any back, neck or spinal problems.
297 When asked whether he had suffered from any conditions, he said “cervical neck sprain at work”. The plaintiff answered “no” to taking various medications and did not advise he was taking Panadol or Nurofen.
298 Counsel for the defendants provided a summary of the leave taken by the plaintiff between December 2005 and August 2007. There were ten days where the plaintiff provided medical certificates which simply set out “ill” and nine days where certificates were not provided.
299 The plaintiff was also absent from work on sick leave for fifty four days from 1 September 1993 to the said date.
The Defendants’ Lay Evidence
300 An affidavit was sworn by Emmanuel Livori, a forklift driver employed by the first defendant, on 21 May 2010. Exhibited thereto was a statement made by him to an investigator in October 2009 in relation to the incident.
301 On the said date, Mr Livori was travelling in his forklift behind the plaintiff, who was driving his tugger. Mr Livori was then travelling at less than walking speed, perhaps three to four kilometres per hour.
302 The plaintiff reached the end of the aisle and stopped. Mr Livori tooted to advise the plaintiff he was behind him. The plaintiff started to move forward and then suddenly stopped and, without warning, Mr Livori’s forklift impacted with the rear of the plaintiff’s tugger.
303 Mr Livori described the impact as a minor one, at possibly three or four kilometres per hour. The plaintiff alighted from his tugger and abused Mr Livori. Within ten seconds or so, the plaintiff informed Mr Livori he had a sore neck. Mr Livori was positive the plaintiff had remained in his standing/driving position at the time of the impact and immediately thereafter, the plaintiff alighted and abused him. Behind the plaintiff’s standing position when driving the tugger was a folding seat which was padded and which would have cushioned any impact if the plaintiff had been thrown back, which, in Mr Livori’s opinion, did not happen, as there was not sufficient impact.
The Defendants’ Vocational Evidence
304 APM (Advanced Personnel Management) provided a report dated 22 January 2009 in which the plaintiff’s vocational rehabilitation program since referral to that organisation on 22 January 2008 was summarised.
305 It was noted the return to work goal was to return the plaintiff to his pre-injury duties and hours as a distribution centre worker. It was noted the plaintiff had refused to participate in return to work efforts and he had been certified unfit for all duties by Dr Sheriff despite alternative medical evidence indicating the plaintiff had a capacity for work.
306 A rehabilitation program and a return to work plan had been prepared and offered to the plaintiff, and it was noted suitable duties would continue to be made available to him.
307 During the return to work intervention program there was a worksite review meeting on 22 September 2008 when Dr Ho’s recommendations were discussed, but disagreed with by the plaintiff. Benefits of exercise were explained to the plaintiff; however, he also disagreed with them. A proposed offer of suitable duties and a return to work plan amendment were explained to the plaintiff and he was advised to discuss these matters further with Dr Sheriff.
308 On 20 October 2008, there was a worksite review meeting held when a proposed offer of suitable duties and a return to work plan amendment were explained to the plaintiff, who stated he would refuse to participate and would continue to work three days per week undertaking light duties.
309 It was noted the plaintiff’s claim was suspended effective 1 December 2008 and the occupational rehabilitation service provider was advised in January 2009 that his services were no longer needed as despite all attempts to assist the plaintiff to return to work, he was not participating in rehabilitation.
310 Jo Keath and Erin Walsh (“the authors”) of Co-Work Pty Ltd provided a Vocational Review and Labour Market Analysis report on 11 July 2010.
311 It was noted the plaintiff’s only formal training was a Certificate III in Transport & Logistics Warehousing in 2004.
312 A history was taken that, following the incident, the plaintiff returned to work on light duties with time off work from time to time and reduced hours, and he did not return to his pre-injury duties as a storeman.
313 The authors believed the jobs of signwriter, stock controller and packer (light goods) complied with the plaintiff’s medical restrictions.
314 As a signwriter the plaintiff would earn $703 per week, warehouse stock controller $825, and packer $743.21 per week.
Overview
315 I accept that the plaintiff suffered a compensable injury to his neck and back in the incident on the said date, the more significant injury being an aggravation of a previously asymptomatic C5-6 disc.
316 Although initially there was little medical support for the view that the plaintiff had any significant spinal problem or that he required treatment, I accept that the plaintiff has continuing spinal problems, particularly in his neck, resulting from the incident.
317 On 4 December 2008, the defendants accepted liability for the plaintiff’s claim pursuant s.98(c) of the Act in relation to an injury to the neck and back suffered on the said date.
318 Dr Sheriff, Dr Ong, Dr Blomberry and Mr Battlay considered that the plaintiff continues to suffer from an aggravation of degenerative disease at C5-6 as a result of the incident. Mr Jones shared this diagnosis and could not exclude the incident as possibly being the cause of some minor residual symptoms in the plaintiff’s neck.
319 Whilst it was initially put that the plaintiff suffered injury during the course of his employment from 2002 and also as a result of the incident, the plaintiff’s viva voce evidence was that he had not had any spinal problems before the said date and that he continued having problems thereafter until August 2007, when Linfox became his employer.
320 I accept that the plaintiff suffered a traumatic injury to his spine on the said date when the tugger in which he was working was hit from behind by a forklift. As a result of the impact, the plaintiff was thrown backwards and suffered a severe jolting injury as described by him to Dr Kohn later that day. The plaintiff felt a very hard hit from behind as noted in the incident report also completed on the said date.
321 The issue is whether that compensable injury materially contributes to the plaintiff’s present spinal condition and whether such condition is serious and permanent.
322 Arguing against the seriousness of the plaintiff’s impairment, counsel for the defendants relied upon the following:
(a)
the lack of support from the four general practitioners who saw the plaintiff in the fortnight after the incident as to seriousness of the plaintiff’s condition and need for treatment;
(b)
no treatment was received by the plaintiff thereafter until he saw Mr Haw in May 2006, at which time Mr Haw thought the plaintiff had recovered;
(c)
prior to December 2007, there was no certification from any general practitioner as to lighter duties being required because of the plaintiff’s spinal injuries;
(d)
from May 2006 until he saw Dr Sheriff in December 2007, the plaintiff underwent no treatment;
(e) the plaintiff did not take prescription medication in the section 70 period; (f) the plaintiff was able to do relatively heavy work in the section 70 period. 323 On the basis of the above, it was submitted that the plaintiff had recovered from his incident injury after a few days’ discomfort and there was therefore no longer a material contribution by that incident injury to the plaintiff’s present condition.
324 Further, it was submitted any spinal impairment was not serious and the plaintiff had not demonstrated the requisite loss in relation to his loss of earning capacity claim.
325 Whilst the matters set out in paragraph 322(a) to (e) are not in dispute, clearly following the incident, the plaintiff considered he had a spinal problem, in relation to which he received little assistance from the doctors seen by him.
326 Having initially had two days off work following the incident, the plaintiff was unable to return to his heavier pre injury duties and he sought the assistance of the union in this regard.
327 The plaintiff was then put on section 70 duties, which he described as much lighter than his previous job. In that section, the items to be lifted, albeit very repetitively as before the incident, were not to exceed ten kilograms rather than sixteen kilograms, as was required in his pre injury job.
328 The plaintiff struggled with these duties until the first defendant’s business was taken over by Linfox in August 2007. The plaintiff’s problems in this regard were confirmed by Mr Puljic, former team leader, who noticed the plaintiff was still in significant pain whilst engaged in section 70 work.
329 Mr Puljic’s evidence was not challenged, nor was the plaintiff’s partner’s evidence that during this period she observed the plaintiff come home from work in pain and spend much of the night on the couch.
330 Further, she deposed that during the section 70 period, the plaintiff continued to take regular medication to ease his pain and he was frustrated by doctors who offered him no solution.
331 The plaintiff took six weeks off work in mid 2006, hoping his condition would improve. From that time, the plaintiff claimed that he took a day off a week, although not every week, because of his spinal pain. Although the leave records tendered by the first defendant indicate about twenty days’ absence from work in the section 70 period, I accept that the plaintiff also took rostered days off and used his annual leave during that time because he was struggling with his work duties.
332 The plaintiff explained that he did not seek medical treatment during this period despite his continuing spinal pain because he had seen four doctors and they had not assisted him. Further, Mr Haw had reassured him there would be improvement and even though the plaintiff became increasingly worried at the lack of improvement over the section 70 period, he relied on that specialist opinion rather than see further general practitioners whom he did not trust.
333 Whilst the plaintiff’s explanation as to why he did not take more significant prescription drugs during the section 70 period was somewhat unclear, I accept that during that period, he was taking over-the-counter medication, battling on at work to financially support both himself and his partner.
334 I accept the plaintiff’s evidence that his spinal problems dramatically worsened from July/August 2007 with the heavier work at Linfox. After engaging in these duties for three months, the plaintiff was unable to continue working and he did not return to work until May 2008.
335 In December 2007, the plaintiff came under the care of Dr Sheriff, who has prescribed painkilling medication since that time. The plaintiff was also then sent for further investigations and specialist referral.
336 On his return to work in May 2008, the plaintiff attempted various levels of lights duties but was unable to continue working beyond October 2008 as a result of his spinal condition.
337 Whilst the period of heavy duties with Linfox between August and December 2007 was the catalyst for a significant increase in the plaintiff’s pain and resulted in him ceasing work for some months, if I accept that the incident injury materially contributes to the plaintiff’s present condition and find that condition to be serious and permanent, the plaintiff succeeds in this application.
338 As Ashley JA said in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at paragraph 58, “a consequence may have a multiplicity of causes including a multiplicity of compensable injuries”.
339 Provided the plaintiff establishes that the subject compensable injury in 2005 materially contributes to his impairment and its consequences, and will continue to do so permanently, then the role of other injuries, namely, the Linfox employment, does not preclude a court concluding that there is an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other.
340 In cross-examination, there was really no challenge to the plaintiff’s description of his pain or as to his level of restriction. However it was later submitted on behalf of the defendants that the plaintiff had shown a full range of neck movement on most examinations and he had showed a more limited range of movement when asked to move his neck in court.
341 Whilst the index to the defendants’ Court Book referred to video surveillance, no film of the plaintiff was shown during the hearing. Further, save for a comment by Mr Jones that the plaintiff’s level of symptoms were out of proportion to his complaints, and Dr Blombery’s finding of some anxiety and depression, there was no medical evidence as to any exaggeration by the plaintiff or the presence of non organic features in the plaintiff’s presentation.
342 I accept that prior to the incident, the plaintiff had no spinal problems. He was hardworking and able to engage in heavy manual work and he enjoyed a full and active life.
343 Since the incident, the plaintiff has not been free from spinal pain. After the section 70 period, to keep his job he returned to heavier duties, which he was only able to perform for three months. He was then was forced to cease work in December 2007. He attempted lighter duties between May and October 2008 which involved working on lane marshalling where he had to be on his feet all day, walking up between rows of pallets and cages checking consignments. This work looking at stickers on the goods gave him persisting problems when looking up and down and moving his neck. He was only able to manage reduced hours three days a week and his employment was then terminated.
344 In my view, the plaintiff’s neck injury is as described by Dr Ong – “… the result of the nature of his [the plaintiff’s] repetitive work on [a] background of an old work-related neck injury” suffered in the incident.
345 In this regard, Mr Jones noted that in the absence of any previous history of neck injury or symptoms, it was possible that the incident may have aggravated minor disc degenerative disease at C5-6 and, likewise, in the thoracolumbar spine.
346 I do not accept that the plaintiff has recovered from the effects of the incident injury as Dr Ho and Dr McIntosh opined, nor do I accept that any ongoing problems are attributable to age related degeneration as Dr McIntosh thought was the case.
347 Other examiners, treaters or medico-legal, do not comment in this regard.
348 I accept that there is a material contribution from the incident injuries to the plaintiff’s present spinal condition, particularly in relation to his present cervical spine.
349 The following consequences were unchallenged and supported by evidence from the plaintiff’s partner.
350 The plaintiff continues to experience constant though varied pain in his spine, more in his neck and upper back, with pain shooting or radiating into his arm and his left leg. He has variable restriction of neck movement. At time his movement is full. On a bad day, there is pain, inflammation and stiffness. At all times, the plaintiff has pain in his upper back, between his shoulder blades, and also in his lower back.
351 The plaintiff has required prescription medication, Mobic and Panadeine Forte, since December 2007 and took over-the-counter medication before that time.
352 The plaintiff continues to experience difficulty with getting a restful night’s sleep due to pain, a matter which Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, at paragraph 45, thought was a matter of great significance.
353 The plaintiff experiences difficulty performing personal hygiene activities such as putting his head back to gargle. He has problems with urination and sensation to this effect. He tends to experience increased pain if he coughs, sneezes or strains at the toilet.
354 The plaintiff is unable to engage in desired sexual activity, which is frustrating for him. As a result, he feels less adequate as a man, and is concerned about the added strain that is put on his relationship with his partner.
355 The plaintiff continues to have significant problems with mobility but he tries to remain as active as possible. He tries to walk on his doctor’s advice, but tends to find some days are particularly bad, and he pays for increased activity with more pain afterwards, despite taking regular medication.
356 The plaintiff tends to only take public transport to necessary appointments as he experiences increased neck and back pain on public transport if he has to stand.
357 The plaintiff’s ability to enjoy social activities, going out with family and friends, going fishing and playing sport, such as basketball, and socialising at home, continues to be affected by his work injury. He no longer gets enjoyment from those activities, and he is often preoccupied by his pain.
358 Whilst he enjoyed work as painter in Bosnia, and did so for leisure on coming to Australia, since the incident, the plaintiff has generally avoided painting and drawing, as he experiences pain in his spine from looking down and standing or sitting in one position for long periods, and he also has difficulty concentrating as a result of the pain caused by his spinal injury.
359 The plaintiff tries to vary his movements and posture, and tends to avoid heavy lifting, repeated heavy pulling or pushing, overreaching with his arms, prolonged flexion of his neck, and strenuous arm movements, in particular above shoulder height.
360 The plaintiff’s domestic activities have been very significantly affected by the injury. He remains dependent upon the assistance of others with meal preparation, cleaning, laundry and outdoor activities that he was previously able to perform independently, in addition to his work duties.
361 The plaintiff’s ability to do unrestricted manual work has been affected by his spinal injury. Dr Ho is the only doctor who considers the plaintiff is fit for pre- injury employment. Whilst Dr Sheriff is alone in the view that the plaintiff is not fit for any work, those who have commented on the plaintiff’s work capacity, namely, Mr Jones, Dr Blombery and Dr McIntosh, Mr Jithoo consider the plaintiff is not fit for heavy or repetitive work or work involving extremes of neck movement.
362 The plaintiff’s symptoms have continued since December 2005 and increased significantly after December 2007.
363 In such circumstances, and accepting the plaintiff’s condition has stabilised, with no further treatment suggested, I am satisfied that the plaintiff’s spinal impairment is permanent.
364 Taking into account all the evidence, I consider that the plaintiff has a serious injury of his spine.
Loss of Earning Capacity
365 To obtain leave in relation to loss of earning capacity, the plaintiff must 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).
366 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. 367 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
368 “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.
369 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.
370 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.
371 As the Court said in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
“It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
372 The plaintiff’s current earnings from personal exertion are nil.
373 I am therefore required to determine a “without injury” earnings figure.
374 There was no real dispute in this regard. The plaintiff’s “without injury” earnings were agreed in the range of $36,000 as the figure that most fairly reflected his earning capacity in the relevant statutory period had the injury not occurred.
375 To succeed in this application, the plaintiff must establish that on a permanent basis he does not have the capacity to earn in excess of $21,600 – a figure representing a permanent loss of forty per cent.
376 Counsel for the plaintiff submitted that the plaintiff’s capacity for suitable employment was nil. Reliance was placed upon Dr Sheriff’s view that the plaintiff cannot work at all.
377 In the alternative, it was submitted if the plaintiff worked the maximum hours suggested by Dr Blombery of eight to twelve hours’ light duties per week, the plaintiff would not earn in excess of the threshold amount based on the wage rates applicable to the suggested jobs.
378 Counsel for the defendants submitted that the plaintiff had a capacity for work, albeit not heavy work, and that he could not establish the requisite loss on a permanent basis. Further, it was submitted that the plaintiff had not co- operated with various return to work plans and attempts at rehabilitation.
379 Whilst I accept the plaintiff no longer has the capacity for unrestricted heavy manual work, in my view, he does have a capacity for lighter employment or sedentary work.
380 The plaintiff was prepared to continue working three days a week on light duties when he refused to participate in the return to work program proposed in September 2008.
381 The plaintiff’s medical evidence as to his current work capacity is very scanty.
382 Dr Sheriff simply commented that the plaintiff remained fairly disabled to return to work and given his educational qualification, he thought the plaintiff’s future employment prospect was most unlikely. Dr Sheriff’s only comment as to the return to work duties was that the plaintiff could not cope with using a compactor.
383 The plaintiff had in fact ceased compactor work some months before he stopped working for the first defendant. Dr Sheriff did not comment on the stock control duties checking stickers, or any other duties proposed by the first defendant.
384 There is very little mention by other medical examiners since the plaintiff ceased work in October 2008 as to his present capacity for employment. This issue was not commented upon at all by treating specialists, Mr Barrett and Dr Castle. Dr Ong simply commented that the plaintiff should look for sedentary work.
385 Dr Blombery, whilst of the view the plaintiff could do light duties for eight to twelve hours per week, did not provide any detail of what such duties involved or the reason for the restriction in hours.
386 Taking into account the available evidence, I am not satisfied that the plaintiff has identified with any precision a permanent loss of earning capacity to the requisite degree.
387 I am not satisfied that on a permanent basis the plaintiff does not have the capacity to earn in excess $21,000.
388 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g) of the Act.
389 The plaintiff is still a relatively young man. In my view, he is fit for sedentary work or a light job not involving a lot of head movement.
390 I consider the plaintiff’s understanding of English to be good. Further, his academic ability was evidenced by his admission to and completion of one year of a law degree in Bosnia. There was no evidence of the plaintiff having any difficulty with this course.
391 With retraining, particularly in the use of computers, the plaintiff would have the capacity to earn in excess of $21,000. I do not share Dr Blombery’s view that the plaintiff’s educational background would make retraining difficult.
392 Taking onto account all the evidence, in my view the plaintiff cannot establish on a permanent basis the requisite loss of earning capacity of forty per cent or more.
393 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for loss of earning capacity is dismissed.
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