Mohamadian v VWA
[2019] VCC 1405
•10 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-01773
| ALI SEYED MOHAMADIAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-3 September 2019 | |
DATE OF JUDGMENT: | 10 September 2019 | |
CASE MAY BE CITED AS: | MOHAMADIAN v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1405 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Judgment: Leave granted to the plaintiff
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC Mr A Dimsey | Zaparas Lawyers |
| For the Defendant | Mr R H Stanley | Lander & Rogers |
HER HONOUR:
1 The 39 year old plaintiff applies under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering and economic loss in respect of an injury to the lumbar spine suffered during the course of his employment, through labour hire firms, with Scalzo Food Industries (‘Scalzo’) between October 2012 and June 2017.[1]
[1]The application in respect of psychiatric injury was not pursued at the hearing.
2 The plaintiff was born and educated in Iran. He completed a degree in child psychology and then worked for the family business full-time for eight years until 2010.[2] He also played first division soccer professionally. His family then lost their business during a period of political upheaval and the plaintiff came to Australia via Indonesia. He was in immigration detention between 2010 and 2012 and is now an Australian citizen. His degree from Iran is not recognised here. He studied English for seven months and then began working for the employer, Scalzo, in October 2012, casually but full-time. He coached an under 15s soccer team and hoped to fulfil his passion of coaching soccer full-time.
[2]The business sold iron ore and manufactured iron ore products.
3 His duties involved unpacking pallets of nuts, then lifting cartons of nuts weighing about 20 kg above shoulder height to pour the nuts into a hopper. He would move between 10 and 14 pallets per day, each containing either 33 or 42 cartons of nuts. He began to experience back pain in the second half of 2013. He had injections, was prescribed Tramal, had physiotherapy, and kept working full-time. He was also working night shift in a cheese factory[3] for about three years, doing quality control. He ceased that work in 2016 and then obtained a different second job at a meat factory, working on machines, for about five to six months.[4],[5]
[3]Ballantyne Cheese.
[4]T21.16.
[5]He was unable to cope with the prolonged standing involved in operating the machine.
4 The plaintiff had trouble with the written English on the computer and with prolonged sitting and standing. He mentioned his back pain to his supervisor at Scalzo in 2015 but declined an offer to do fewer hours in another area. In 2016, he was put on different duties and reduced his hours to 25 hours per week. In late June 2017, he ceased working for Scalzo due to his back injury. In early 2019, he attempted to undertake a security training course but could not manage the prolonged sitting, and stopped attending after seven sessions on the advice of his doctor that he was not capable of performing security work. He has not worked since mid-2017 due to his back pain and restrictions.
5 The plaintiff lodged a WorkCover Claim shortly after he stopped work with Scalzo in June 2017.[6] His claim was initially rejected, but was later accepted.[7] He received some medical expenses and arrears for some weekly loss of earnings payments. He did not receive ongoing weekly payments and was reliant on Centrelink.[8]
[6]Plaintiff’s Court Book (‘PCB’), p 36.
[7]T9.9.
[8]PCB, p 83.
6 He has daily back pain which is managed with Tramal 200 mg taken twice per day.[9] He gave evidence that he stopped taking Endone because it made him sleepy.[10] The pain goes down his left leg and he sometimes has a numb left foot. The pain wakes him at night, interferes with his driving long distances, and interferes with prolonged sitting, walking and standing. Some days, he cannot get out of bed due to his back pain. He has had to move to a ground floor apartment from a third-floor flat. He has been playing soccer since the age of six, and played professionally in Iran. He loved playing the game. In Australia, prior to his injury, he coached an under 15s team. Since his injury, he has been limited to helping others coach, and then only on a few occasions.
[9]At the time of his first affidavit, sworn 16 December 2018, he was also taking Panadeine Forte and Endone.
[10]T19.17.
7 He says that in terms of his pain and suffering and loss of enjoyment of life, the consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the lumbar spine. He says that he is permanently incapacitated for work in suitable employment either at all, or for more than nine hours per week, because of his poor English, his work history of manual labour in Australia, his significant daily pain which interferes with his concentration, his inability to attend work reliably, and his inability to tolerate prolonged sitting, standing, bending, and walking. He says that he is unable to retrain further because of these issues.
8 In relation to both pain and suffering and work capacity, the defendant relies on a number of matters which, taken together, cast doubt on the plaintiff’s credit as well as affecting the opinions of doctors who allegedly obtained a less than full history from him. First, that the plaintiff worked a few shifts at a distribution centre at time in mid-2017 when he was certified unfit by his doctor for all employment and the face of the certificate stated that he was not working. Second, that the plaintiff did not divulge that work in mid-2017 in his affidavits. Third, that the plaintiff did not disclose in his first affidavit[11] that he worked in a meat factory for six months in 2016 while working for Scalzo, nor that he had to stop that work because of his back pain. Fourth, that in his affidavit the plaintiff admitted lying to Scalzo when giving the explanation for stopping work as the flu, rather than his injured back. Fifth, that he deposed in his first affidavit to having seen a neurosurgeon, Mr Bittar, whereas in the second affidavit[12] he acknowledged that he never saw him but saw a member of his staff. Sixth, that on his Facebook the plaintiff has posted images of himself in the past year jogging, riding a bike, and using gym equipment in the park which are not referred to in his affidavits. Seventh, that the short video clips taken from Facebook showing the plaintiff playing soccer and particularly diving in front of the soccer goal at training to save a shot, which have not been shown to any treating or examining doctors, are inconsistent with the histories given by the plaintiff to those doctors and inconsistent with his claims of constant pain, which flares up after any activity to a level of ten out of ten,[13] and with his claims of moving slowly and having difficulty putting on his socks and trousers.[14]
[11]Sworn 16 December 2018.
[12]Sworn 7 August 2019.
[13]PCB, p 57.
[14]PCB, p 39.
9 Notwithstanding the plaintiff’s explanations for his Facebook entries and the activities shown therein,[15] the defendant says that what the plaintiff is seen doing on Facebook reflects what he can do, and therefore the Court should not accept medical opinion to the effect that the plaintiff is permanently incapacitated for all work. Finally, the defendant says that, given his educational level, the plaintiff could be undertaking further English courses to improve his prospects of finding work, including in sports psychology. In all the circumstances, the defendant says that the Court should accept the opinion of Mr Dooley that the plaintiff has the capacity to work full-time doing sedentary duties in the positions outlined in the Recovre report[16] and has not satisfied the onus he bears to establish that after rehabilitation and retraining he will permanently suffer a 40% loss of earning capacity.
[15]Outlined below at paragraphs 13-15 of this judgment.
[16]Defendant’s Court Book (‘DCB’), p 26.
10 There appears to be no issue that as a result of his employment with Scalzo the plaintiff suffered an aggravation of lumbar spondylosis, and that he now presents with disc bulges involving the lower three lumbar discs and a small non-compressive disc protrusion at the L5/S1 level[17] as well as small disc protrusions at T12, L1 and L2. There is no nerve root compression.
[17]See report of Mr Awad at PCB, p 62.
11 The parties agree that the plaintiff will fail on the loss of earning capacity limb of his application if the Court finds that he is capable of working 17 hours or more in suitable employment.
The hearing
12 With the assistance of an interpreter, the plaintiff gave evidence and was cross-examined. There were no other witnesses. The parties tendered court books and the defendant also tendered extracts from the plaintiff’s Facebook entries, including photographs and videos. I have considered all of the material relied upon by the parties.
The plaintiff
13 In his oral evidence, the plaintiff agreed that in late June 2017, when he obtained his Certificate of Capacity from Dr Baglar, he did not tell him that he had worked some shifts the previous week.[18] However, he said that he did not read the Certificate of Capacity before signing it.[19] He said that his Facebook entries purporting that he was a scout for a prominent soccer team (not the one he was coaching) were part of the false picture he painted of himself, largely to comfort his mother and family in Iran, as being successful in Australia.[20] His mother had a heart attack in Iran, and he had worked on at Scalzo while suffering back pain because he had to pay up front for her heart surgery.[21] Once he had paid for her surgery, he stopped work as he could no longer continue due to his back pain.[22] He wanted her not to worry about him.[23]
[18]T30.7.
[19]T31.8.
[20]T33.27.
[21]T76.7.
[22]T76.13.
[23]T50.10.
14 He agreed that he was able to run, slowly, for 30 minutes, when his pain allowed.[24] He agreed that he had, on the occasions shown in the Facebook photographs, ridden a bike and used some outdoor equipment at a park. However, he said that he had only been able to ride the bike five or six times since purchasing it,[25] because riding caused increased back pain after 20 minutes.[26] He said that in the past two years he had only exercised at the park about four or five times.[27]
[24]T52.14.
[25]T77.14.
[26]T77.19.
[27]T78.1.
15 He said that soccer was his life’s passion and that it had always been his dream to be an elite soccer coach.[28] He said that some of his Facebook entries were fabrications designed to reflect that dream. He said that he never received any money from coaching children here,[29] and that after stopping work due to his back injury, had only attended six or seven training sessions[30] with the Williamstown Football Club under 14s team to help his friend Sam, who was the coach, and who knew of his love of soccer and of his back injury.[31] He said that he loved soccer so much that he took Tramal in order to participate in the training sessions.[32] When the coach asked him to stand in front of the goals, he did so, and could not stop himself from diving to stop the ball.[33] After doing so, he suffered pain at night and swore he would not attend training again.[34] However, his love for the game meant that he did attend a few more sessions.
[28]T75.15.
[29]T34.21, T36.31, and T38.10.
[30]T56.7.
[31]T63.14.
[32]T74.4.
[33]T61.20.
[34]T74.29.
16 The plaintiff said that he had tried to perform a light sedentary job[35] when he worked at the cheese factory, but that his back pain became too great after a few hours, even though he could stand or sit at will.[36] He said he tried scanning work in a warehouse for two weeks in July 2017 but was unable to keep going because of his poor walking and standing tolerances.[37] He said that he regretted not having made more progress with his English[38] but that he was unable to sit through further courses.[39] He said that WorkCover had never offered him any retraining or participation in any English course, nor had arranged for him to try to work in any position.[40] He said that he was unable to guarantee his attendance each day at any workplace because of his back pain. He said that when his back pain is very bad, he stays in bed.[41] He has tried to cope without Tramal but has been unable to manage his back pain without it.[42] He could not recall any doctor recommending that he participate in a pain management program.[43]
[35]T72.8.
[36]T72.16.
[37]T71.10 and T71.23.
[38]T69.16.
[39]T69.26.
[40]T71.3.
[41]T72.26.
[42]T70.21.
[43]T70.24.
Radiology and Medical opinions
17 CT scan on 19 April 2016 was reported with the following conclusion:
Mild disc bulges at L4/5 and L5/S1. There is no suggestion of any significant canal narrowing at any level. Mild narrowing of bilateral neural foramina at L5/S1 is noted. No cause for stated symptoms identified.[44]
[44]PCB, p 96.
18 CT scan on 31 January 2017 was reported with the following conclusion:
1. Mild L1/2 lumbar spondylosis without disc prolapse.
2. Broad based posterior annular L5/S1 disc prolapse causing mild bilateral foraminal stenosis could irritate or partially impinge on both L5 nerve roots.[45]
[45]PCB, p 97.
19 MRI scan on 22 October 2018, was reported with the following conclusion:
There are disc bulges involving the lower three lumbar discs and a small noncompressive disc protrusion at L5/S1. Small disc protrusions also described at T12/L1 and L1/2. No nerve root compression seen.[46]
[46]PCB, p 98.
20 The plaintiff’s treating doctor in 2015, Dr Peyman Mohammadi, reported[47] on 9 July 2018 that the plaintiff saw him in early June 2015 with chronic back pain which was aggravated by heavy lifting at work. He was treated with analgesia and a number of injections in June and July 2015 which gave him some relief. He was also referred to physiotherapy which he was undertaking fortnightly as at 9 March 2018.[48]
[47]PCB, p 27.
[48]PCB, p 57.
21 The plaintiff’s treating doctor in 2017, Dr Hakan Baglar, reported on 11 September 2017[49] that the plaintiff presented at the clinic on 30 June 2017 with a history of back pain starting in 2014 and escalating in the eight months prior to his attendance. Dr Baglar noted the difference in the CT scans taken nine months apart, and considered that the second scan reflected a more serious work-related back injury, which required an MRI scan and referral to a neurosurgeon. Dr Baglar last saw the plaintiff in early December 2017.[50]
[49]PCB, p 28.
[50]PCB, p 34.
22 On 9 March 2018, Mr Mohammed Awad, neurosurgeon, provided a medico-legal report[51] to the plaintiff’s solicitors in which he diagnosed work-related aggravation of lumbar spondylosis. He opined that the plaintiff did not have a capacity for his pre-injury employment and that, although, in theory, he had the physical capacity for sedentary work several hours per day, several days per week, given his age, education, work experience, training skills and the severity of his back condition, it was “unlikely that he would be able to carry this out in a reliable and consistent fashion”.[52] As a result of his limitations, Mr Awad concluded that he not engage in any occupation that requires any lifting, pushing, pulling, bending, twisting and repetitive lumbar spine movement, or sitting or standing for more than 30 minutes without a break.
[51]PCB, p 56.
[52]PCB, p 58.
23 The plaintiff’s treating pain specialist, Dr Meena Mittal, reported on 9 July 2018[53] receiving a history from the plaintiff of the onset of back pain in 2013 as a result of his fast paced job. He complained to Dr Mittal of lower back pain which he rated as four out of ten on most days, and which was aggravated by activity to a level of eight to ten out of ten. The pain was worse on the left and sometimes after prolonged sitting or walking, radiated down the left thigh to the knee, with pins and needles in the left foot. His driving and sitting tolerances were 20 to 30 minutes and he could walk about 30 minutes. He could not lift more than five kilograms.
[53]PCB, p 46.
24 Dr Mittal diagnosed chronic low back pain secondary to work-related injury caused by muscle spasm, underlying facet joint pain, possible discogenic pain, and possible nerve root irritation.[54] She recommended an MRI as well as review of his medication, and participation in more frequent physiotherapy. She concluded that the plaintiff could not return to his pre-injury employment. She recommended permanent work restrictions: no lifting more than five kilograms; no forward bending or backward extension; no pushing or pulling; no sitting or standing for more than 30 minutes at a time with the ability to change postures. She considered that his condition had become chronic and that there was unlikely to be a complete reversal of his symptoms in the future.
[54]PCB, p 49.
25 On 8 July 2019, Dr Mittal reported[55] that the plaintiff told her his back pain was constant, rating six to seven out of ten on most days with exacerbation to nine to ten out of ten on physical activity. Otherwise his lower back symptoms were as previously noted. He was having weekly physiotherapy and hydrotherapy. He was taking Tramadol 200 mg and Endone 5 mg. On examination, she noted reduced extension and midline tenderness as well as obvious muscle spasm on the left side. Her diagnosis remained the same as previously reported. She advised against the ongoing use of opioids and recommended that he take simple analgesia. She suggested medial branch blocks and, if positive, that he undergo radiofrequency denervation of the medial branch nerves.
[55]PCB, p 51.
26 Dr Mittal concluded that the plaintiff does not have the capacity to engage in suitable alternative employment due to the fact that lacks an alternative skill set, has difficulty with prolonged sitting, standing and driving, and his attendance at work is likely to be irregular due to the variable nature of his pain, its chronicity, and the frequent exacerbations that he suffers.
27 The plaintiff’s current treating doctor, Dr Cesar Tan, reported on 21 July 2019[56] that the plaintiff suffers from work related chronic back pain and remained totally incapacitated for his pre-injury or alternative duties. He would need to continue having physiotherapy, taking medication, and was referred to a pain management specialist for further treatment. On 5 August 2019,[57] Dr Tan confirmed that the plaintiff’s symptoms were organic, and recommended permanent work restrictions of no lifting more than five kilograms, no repetitive bending of the lower back, no prolonged walking, sitting or standing of more than 30 minutes, and a requirement to vary his position regularly. Dr Tan opined that no specific treatment was available to him, apart from a pain management program, and that the plaintiff would continue to suffer low back pain with varying severity depending on his activities. Dr Tan concluded that he was permanently incapacitated for any suitable employment that he could perform on a reliable and consistent basis. He noted a reduced functional capacity for sleep, activities of daily living, household tasks and strenuous sporting activities.
[56]PCB, p 21.
[57]PCB, p 23.
28 On 16 August 2019, Mr Awad provided a further report[58] in which he noted that the plaintiff was currently taking Tramadol daily, having regular chiropractic treatment and monthly massage therapy. He was swimming five times per week. He noted the results of the MRI scan, and made similar findings on examination to those made previously. He repeated the conclusions stated in his first report. He considered that surgery would not offer the plaintiff any significant benefit, and recommended that he continue treatment with a pain specialist. He concluded that there was an organic, physiological basis to the plaintiff’s pain, symptoms and disability and that his injuries were permanent.[59] He repeated his conclusion that the plaintiff had a theoretical physical capacity for alternative employment for up to nine hours per week, but that his capacity to work consistently and reliably in such a position would depend on his level of pain, its unpredictability (and the nature of his flare-ups) as well as his driving limitation.
[58]PCB, p 60.
[59]Mr Awad reviewed surveillance reports of 15 April 2018 and 26 June 2018 and indicated that they were snapshots of the plaintiff’s day. Mr Awad noted that chronic lower back pain can be variable, and that there can be good periods followed by bad periods. He considered that the surveillance did not disclose the aftermath of normal activities, nor the variability of symptoms from day to day.
29 On 20 August 2019, Dr David Middleton, occupational physician, provided a medico-legal report[60] to the plaintiff’s solicitors in which he commented at length on what he considered to be the deficiencies in the Vocational Assessment Report from Recovre, dated 12 June 2019,[61] in which the author identified a number of “vocational options” said to be based on the plaintiff’s education, work history, transferable skills, and the limited medical opinions provided to the author. The positions suggested by the Recovre report were those of production roles; warehouse administration; quality control; security officer; console operator; and cashier.
[60]PCB, p 72.
[61]DCB, p 26.
30 Dr Middleton noted that the plaintiff has a computer and uses a smart phone but occasionally uses translation applications, has slow typing skills and limited spelling skills, and uses his computer for social use only. He has no skills in creating documents or reports. Dr Middleton also noted that the plaintiff’s actual functional limitations (sitting, standing, walking) are greater than those assumed by the author, and do not take into account what his tolerances are on bad days. Further, Dr Middleton considered that the author failed to assess the physical requirements involved in the various options against the plaintiff’s functional limitations and the day to day variation in his pain. He considered that some of the proposed roles (warehouse administration, security officer, production roles) were physically demanding, and that other roles (such as cashier, console operator) required clerical expertise and commercially viable computer skills which the plaintiff does not have. In particular, the plaintiff could not be a security officer because he lacks the necessary qualifications and is unable due to his poor postural tolerances, to sit through the required course when he last attempted it. He also lacks the physical capacity to train in defensive techniques and CPR and lacks the administrative or clerical skills needed for the roles of process worker, product assembler and packer.
31 Dr Middleton opined[62] that as a result of the manual handling work performed at Scalzo, the plaintiff had suffered aggravation of his previously asymptomatic, age-related, degenerative lumbar spine, resulting in structural damage to the L4/5 and L5/S1 discs, which subsequently prolapsed, leaving him with lumbar instability, irritation of the lower left spinal nerves, and the development of a significant neuropathic component to that pain. He considered that the plaintiff is restricted to sedentary, non-manual activities that need to be performed in a self-paced manner with the provision of regular breaks and the ability to change posture frequently. He noted that poor sleep due to pain, and use of opioid medication to control that pain, would also impact on the plaintiff’s memory and concentration. He concluded that the plaintiff, if he were to return to work, would have to return in a graduated fashion starting two to three hours per day, three non-consecutive days per week.
[62]PCB, p 88.
32 Having regard to the definition of suitable employment, Dr Middleton considered that, in theory, the plaintiff has some physical capacity to perform sedentary work. However, after taking into account his serious incapacity, age, language, education, place of residence, limited skills and work experience and the opinion of his treating doctor that he is unfit for any duties, Dr Middleton concluded that there was no suitable employment for which the plaintiff is currently suited and for which he could perform on a reliable and consistent basis. Considering that five years have passed since the onset of his symptoms, Dr Middleton felt that even if a pain management program were commenced, the impact will be to improve his quality of life, but would only have a limited impact in improving his physical capacity for work.[63]
[63]PCB, p 94.
33 Mr Michael Dooley, orthopaedic surgeon, provided thee reports to the defendant’s solicitors in August 2019. In his first report, dated 19 August 2019,[64] he diagnosed a work related “soft tissue injury to his lumbar spine that has involved some aggravation of his underlying degenerative disc disease”.[65] He said he would not expect ongoing conservative management with medication to include regular ongoing morphine. He felt that the plaintiff’s ongoing lumbar spine symptoms “relate to his naturally occurring underlying degenerative disc disease, the work related aggravation of it….and to his psychological reaction to his situation”.[66] He considered that the plaintiff is physically capable of doing light physical work and clerical duties. In his letter dated 22 August 2019, Mr Dooley indicated that the plaintiff has the capacity to undertake clerical type work, quality control and product examining type work, passive security type work and console operating/cashier type work, although any return to work would need to be on a graduated basis. In his letter dated 27 August 2019,[67] Mr Dooley added that he considered that the plaintiff also has the capacity to work as a despatch clerk, as a security concierge, or as a security officer.
[64]DCB, p 5.
[65]DCB, p 7.
[66]DCB, p 8.
[67]DCB, p 11.
34 I note that there was surveillance footage from April and June 2018 shown to some doctors, but not tendered, and that in their reports those doctors indicated that their opinions had not changed in the light of that footage.[68]
[68]See Dr Tan at PCB, p 26; Dr Mittal at PCB, p 55; Mr Awad at PCB, p 63; and Dr Middleton at PCB, p 87.
Findings and reasons
35 I found the plaintiff to be an honest witness in relation to his evidence about his pain and restrictions and his work capacity. I accept the explanations he gave concerning the image which he projects on Facebook, largely for the benefit of his mother and family in Iran, and I accept his evidence that this image stands in sharp contrast to the realities of his life since he ceased work due to his back injury.
36 I have viewed the Facebook photos of the plaintiff riding a bike, jogging, and using outdoor gym equipment at the park, as well as the Facebook videos of the plaintiff playing soccer, including diving for a ball at soccer training. I accept his oral evidence in relation to those matters, which is outlined at paragraphs 13 - 15 above. I note that each of these photographs and videos comprises a short snap shot of the activities of the plaintiff. There is no medical evidence before me to the effect that the plaintiff’s capacity to do those activities is inconsistent with the plaintiff’s symptoms. To the contrary, I note that Dr Middleton, Dr Mittal and Mr Awad all commented on the unpredictability of his symptoms and the fact that the plaintiff could have good periods followed by bad periods.
Pain and suffering
37 There is no issue, and I therefore find, that during the course of his employment the plaintiff suffered an injury to the lumbar spine by way of aggravation of underlying degenerative changes to the lumbar spine comprising structural damage to a number of lumbar discs and resulting in ongoing discogenic pain, muscle spasms and possibly joint facet pain. There is general consensus that the plaintiff has a permanent impairment of the function of the lumbar spine, and that he is likely to require analgesia and other conservative measures to manage his pain in the foreseeable future. The general medical consensus is that his pain and restrictions, and loss of amenity, are permanent. In relation to pain and suffering, I accept the plaintiff’s evidence, which is consistent with all of the histories given to doctors, concerning the sequelae of his back injury. I am satisfied that the pain and suffering consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the lumbar spine.
Loss of earning capacity
38 There was general consensus among the experts that as a result of his lumbar spine impairment the plaintiff is permanently incapacitated for his pre-injury employment and, from a physical or orthopaedic perspective, is limited to sedentary, non-manual activities.
39 I agree with Dr Middleton’s criticisms of the Recovre report, in particular its failure to consider the plaintiff’s actual physical limitations, at their worst, when assessing the suggested roles, as well as its failure to accurately assess his transferable skills. I accept the opinion of Dr Middleton to the effect that undertaking a pain management program might assist the plaintiff improve his quality of life but would do little, given the chronicity of his condition, to change his capacity to undertake employment.[69]
[69]PCB, p 94.
40 I am satisfied, on the basis of the opinions of Dr Middleton, Mr Awad, Dr Mittal and Dr Tan, that whilst the plaintiff theoretically has the physical capacity for limited hours of sedentary work per week in a job involving non-manual activities that can be performed in a self-paced manner with the provision of regular breaks and the ability to change posture frequently, when taking into account the variability of his pain and his inability to guarantee attendance at work on a consistent basis, together with his age, limited English, work history in Australia, limited computer skills, that there is no suitable employment available for which the plaintiff is suited. I am satisfied that the plaintiff attempted to undertake a security course, but could not complete it due to his poor postural tolerances, and that he interviewed at university seeking entry into a sports psychology course, but was told that his English was inadequate to undertake the course. In these circumstances, I am satisfied that, after rehabilitation and retraining, the plaintiff will permanently suffer a loss of earning capacity of 40% or more. It follows that the loss of earning capacity consequences of the permanent impairment of the function of the lumbar spine are more than considerable when compared with other cases in the range of permanent impairments of the lumbar spine.
Conclusion
41 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the lumbar spine suffered during the course of employment with Scalzo.
42 I reserve the question of costs.
0
0
0