Mohamed-Saed v VWA
[2016] VCC 1917
•16 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04889
| HAIDAR MOHAMED-SAED | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2016 | |
DATE OF JUDGMENT: | 16 December 2016 | |
CASE MAY BE CITED AS: | Mohamed-Saed v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1917 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury– injury to the lumbar spine – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jones v Dunkel (1959) 101 CLR 298; Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC Mr N Campbell | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds QC Ms N Wolski | Lander and Rogers |
HER HONOUR:
Preliminary
1 The plaintiff worked as a box boy at a business owned by Mushroom Exchange in Doreen. During the course of his employment, from July 2011 until April 2013, the plaintiff was required to frequently lift and move boxes of mushrooms. The plaintiff claimed that, as a consequence of such repetitive lifting, he suffered a lower back injury.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37). The body function said to be impaired is the functioning of his spine.
3 Mr J Brett QC and Mr N Campbell of counsel appeared for the plaintiff and Mr A Moulds QC and Ms N Wolski of counsel appeared for the defendant.
4 At the commencement of the hearing, the defendant conceded that the plaintiff suffers a serious injury for pain and suffering purposes. Therefore, I need only determine if the plaintiff suffers loss of earning capacity consequences to the requisite level. The onus is on the plaintiff to satisfy me that:
(a) he has sustained a loss of earning capacity of 40 per cent or more; and
(b)he will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.[1]
[1]s134AB(38)(e) of the Act
5Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my Judgment.
Relevant background
6 The plaintiff is 33 years of age. He lives with his wife and three children, who are aged 7 years, 4 years and 21 months.
7 The plaintiff was born in Iraq, where he completed secondary school. He later attended Baghdad University, where he completed a Degree in Physical Education Teaching. After graduating, the plaintiff worked in a teaching role in Iraq for approximately six months.
8 In August 2008, the plaintiff migrated to Australia. He then completed an English course that ran for approximately four months on a full-time basis.[2] The plaintiff said he was taught both written and spoken English in this course.[3]
[2]Transcript (“T”) Lines (“L”) T15 L10-12
[3]T43, L14- 5
9 The plaintiff then commenced in a number of casual employment roles. He worked firstly at a carwash, and later as a delivery driver, delivering insulation products around Melbourne. The plaintiff said that he ultimately lost that job as he was not able to use the GPS properly.[4] He then subsequently obtained employment with Bill’s Refrigeration, assisting his cousin who worked as a mechanical engineer.
[4]T17, L 9-17
10 In July 2011, the plaintiff sought employment through One Force Group Pty Ltd. With the assistance of a friend, the plaintiff completed the application form, in which he detailed his employment history in Australia and indicated that he was in good health and enjoyed running, volleyball and swimming in his leisure time.[5]
[5]Defendant’s Court Book (“DCB”) 95
11 After commencing his employment at Mushroom Exchange, but prior to suffering his lower back injury, the plaintiff also played basketball in a team of workmates from Mushroom Exchange.[6]
[6]Plaintiff’s Court Book (“PCB”) PCB 9
Injury and its consequences
12 On 12 July 2011, the plaintiff obtained full-time employment with One Force Group, a labour hire agency, and was placed at Mushroom Exchange Pty Ltd as a box boy. He usually worked an eight to ten hour day, lifting and carrying boxes of mushrooms. The plaintiff described the work as fast-paced and repetitive.[7] In the financial year prior to suffering his injury, the subject of this claim, the plaintiff earned $48,455 gross.[8]
[7]PCB 2
[8]PCB 103
13 On 30 March 2013, the plaintiff first noticed symptoms in his left leg. He rested for a few days before returning to work on 2 April 2013, at which time he suffered an increase in his left leg pain. The plaintiff then sought physiotherapy treatment and was placed on light duties for approximately three weeks.
14 The plaintiff said that the pain was initially in his left leg, but that within a few weeks, he also developed lower back pain.
15 The plaintiff attended the company doctor, Dr Deviprasad Dayasagar, at the Willandra Medical Clinic in Epping.
16 On 13 May 2013, an MRI scan was taken of the plaintiff’s lumbar spine. It demonstrated a moderate left paracentral disc extrusion with compression of the left S1 traversing nerve root, together with a mild L3/4 and L4/5 broad-based disc bulge with a posterior L4/5 annular fissure.[9]
[9]PCB 17
17 The plaintiff continued on light duties until 17 May 2013, at which time he was certified not fit for work. He has not worked since that date.
18 Also on 17 May 2013, Dr Dayasagar referred the plaintiff to neurosurgeon, Dr Nicholas Maartens.
19 On 22 August 2013, Dr Maartens performed a left L5/S1 microdiscectomy and left S1 neurolysis.[10] The plaintiff said that, while this surgery reduced the level of pain and altered sensation in his left leg, it did not reduce the level of pain in his lower back, and he continued to experience pain in his left upper leg.[11]
[10]PCB 24
[11]PCB 5
20 The plaintiff thereafter consulted his former general practitioner, Dr Zaher Bahnasawi, at the Cuthbert Medical Centre in Broadmeadows.
21 In November 2013, Dr Bahnasawi referred the plaintiff for psychological counselling, as he was suffering stress and depression as a consequence of his ongoing lower back pain.[12] The plaintiff consulted psychologist, Mr Ramzi Mohamed.[13]
[12]PCB 26
[13]PCB 4
22 On 21 January 2014, the plaintiff was referred to Cairnlea Physiotherapy for treatment of his ongoing lower back pain.[14] In a report dated 25 June 2014, it was noted that communication with the plaintiff was difficult, as he spoke limited English, and at times there was no interpreter present. The plaintiff was provided with regular physiotherapy treatment, as well as a home exercise program, to assist him in managing his lower back pain.[15]
[14]PCB 27
[15]PCB 31-32
23 On 26 August 2014, the plaintiff was referred to rheumatologist, Dr Talib Tahir. He noted that, despite the microdiscectomy, the plaintiff suffered ongoing lower back pain. Dr Tahir recommended a further MRI scan be performed.
24 On 3 September 2014, an MRI scan was taken of the plaintiff’s lumbar spine. It demonstrated moderate multilevel mechanical change in the lower lumbar spine, most severe at L5/S1, where there was mild contacting and compression of the traversing left S1 nerve root.[16]
[16]PCB 34-35
25 At some time in 2014, the plaintiff attempted a further English course. He attended two days a week for two to three months,[17] but was not able to continue with the course as his pain was too great.[18]
[17]T18 L3-11
[18]Ibid
26 On 13 February 2015, Dr Tahir administered an epidural injection into the plaintiff’s lumbar spine,[19] which, the plaintiff said did not help his lower back pain.
[19]PCB 37
27 The plaintiff was then referred back to Dr Maartens, who arranged for a repeat MRI scan of his lumbar spine.
28 On 15 June 2015, this further MRI scan was suggestive of an L5/S1 recurrent disc lesion and there was marked compression of the traversing left S1 nerve root.[20]
[20]PCB 49
29 On 24 September 2015, Dr Maartens performed a further microdiscectomy and left S1 neurolysis on the plaintiff.[21] Dr Maartens noted that, during this procedure he found a significant recurrent disc prolapse, which was removed.[22]
[21]PCB 46
[22]PCB 52
30 Dr Maartens last reviewed the plaintiff on 3 December 2015, at which time he noted the plaintiff’s left sided leg pain had resolved, and that he took OxyContin as required for “an occasional intermittent niggle in his back.”[23] Dr Maartens considered it would be appropriate for the plaintiff to undergo physiotherapy, so as to allow the plaintiff to return to the workforce in an appropriate capacity, with restrictions on bending and lifting, and to avoid frequent rotation of the lower back.
[23]PCB 53
31 The plaintiff said he last saw Dr Tahir approximately eight weeks after the second microdiscectomy.[24] However, a report from Dr Tahir, dated 11 February 2016, is written on the basis that Dr Tahir last saw the plaintiff prior to that surgery. In this report, Dr Tahir stated that the plaintiff’s capacity for employment would be limited and that the plaintiff probably needed further surgery. Therefore, I consider this report is unsatisfactory, in that Dr Tahir does not provide an opinion as to the plaintiff’s condition and capacity for work, based upon his post-operative examination of the plaintiff.
[24]T13 L9-17
32 The plaintiff said that he received a significant improvement in the symptoms in his hip, left leg and left foot, following the further surgery. However, he stated that he continued to have ongoing lower back pain,[25] which he said is there all of the time and is made worse by walking, bending, lifting or sitting for long periods.[26]
[25]PCB 10
[26]PCB 10
33 The plaintiff takes OxyContin, one in the morning and one in the evening; Celebrex, four a day; and Lyrica, four a day. He also takes 75 milligrams of Effexor for his depression. These medications are prescribed by Dr Bahnasawi. The plaintiff said the OxyContin makes him feel drowsy and dizzy, and at times nauseous.
34 The plaintiff said that Dr Bahnasawi provides him with certificates of capacity, which state he has no capacity to work at all. The plaintiff continues to send these to the WorkCover insurer, although his weekly payments were terminated in late 2015.[27]
[27]T12 L15-17
35 The plaintiff had some physiotherapy treatment following the most recent surgery, but said that has now ceased. However, he continues to complete physiotherapy exercises at home, twice per day, and attends the swimming pool approximately three times per week, to complete exercises in the water that were also recommended to him by his physiotherapist.[28]
[28]PCB 10-11
36 The plaintiff said that he usually takes his daughter to and from school, but that it is only a short drive from his home. He also said that he is able to pick up his youngest child when needed.[29]
[29]T29 L9-28
37 The plaintiff said that he is not able to take his OxyContin medication until after he has driven his daughter to school in the mornings, as it makes him feel drowsy and dizzy,[30] such that he cannot drive for two to three hours.
[30]PCB 13
38 Besides doing his home exercises, and taking his daughter to school, the plaintiff said that he predominantly spends his days watching TV or playing games on his phone.[31] The plaintiff said the pain in his back causes him to wake on average once per night.
[31]PCB 11
39 The plaintiff said he is unable to work due to his constant lower back pain.[32] In cross-examination, Mr Moulds asked him on numerous occasions whether he would be prepared to attempt work, but the plaintiff repeatedly said that his pain prevented him doing so.[33]
[32]PCB 11
[33]T22 L23-26 and L27-28, T26 L24-26, T33 L26-30, T34 L1-4 and L5-9, T37 L3-5
Vocational assessment reports
40 The plaintiff’s solicitors arranged for the plaintiff to be assessed by vocational assessor, Paul Hartley. However, I gained little assistance from this report, as it predominantly summarised the medical material and then strayed into a commentary on matters which are ultimately for me to decide.
41 In addition, the plaintiff’s solicitors arranged for the plaintiff to be examined by vocational assessor, Mr Glen Dwyer, in April 2016. This report provided some detail as to potential employment options, which were similar to those recommended in the vocational assessment reports obtained by the defendant from Nabenet and Ms Joanne Bryant from CoWork Pty Ltd. It also then strayed into a commentary on matters which are ultimately for me to decide.
42 The defendant relied upon a vocational assessment report prepared by Nabenet dated 27 March 2014. In this report, it was recommended that the plaintiff would be able to perform the following jobs:
(1)Product assembler (light products);
(2)Carpark attendant;
(3)Rental sales person (sports equipment);
(4)Packer (light products) and
(5)Product examiner.
43 The report then detailed the duties involved in such jobs and the expected wages.
44 The defendant also relied upon a vocational assessment report prepared by Ms Joanne Bryant from CoWork Pty Ltd, dated 18 November 2016. Ms Bryant commented that the plaintiff had sat comfortably for the majority of her 90 minute interview with him and that he did not show any signs of pain or discomfort.[34] When this was put to the plaintiff in cross-examination, he said that he had been able to move in his chair throughout the interview. In his closing submissions, Mr Brett also noted that Ms Bryant did not state that the plaintiff sat for the entire 90 minute interview, but only for the majority of it.
[34]DCB 94H
45 Before offering her opinion as to vocational options for the plaintiff, Ms Bryant noted that the plaintiff had not worked in almost three years and that:
“Rest seems to have failed to provide relief or an improvement in symptoms.”[35]
[35]DCB 94M
46 In referring to rest, Ms Bryant seems to have overlooked that, during this three year period, the plaintiff had also undergone two surgical procedures, as well as physiotherapy rehabilitation.
47 Ms Bryant then recommended that the following jobs would be suitable for the plaintiff in the short to medium term:
(1)Courier (pathology, dental, floristry);
(2)Product assembler (light);
(3)Packer;
(4)Machine operator;
(5)Carpark attendant.
48 Ms Bryant then detailed the duties required for such jobs and the expected wages.
49 Ms Bryant also noted that the plaintiff had expressed hope that if his pain levels reduced, then he would be able to study English and hopefully go on to teach physical education, as he had qualified to do in Iraq.[36]
[36]DCB 94L
Medico-legal evidence
50 The plaintiff’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr Douglas Gardiner, in April 2016. In his report dated 11 April 2016, Mr Gardiner noted the plaintiff continued to experience left-sided lower back pain, which was exacerbated by sitting, standing or walking. He noted that if the plaintiff drove for more than 15 minutes in his car, he suffered a significant increase in lower back pain. He also noted the plaintiff complained that he woke several times per night due to pain and had difficulties getting back to sleep.
51 Mr Gardiner diagnosed the plaintiff as suffering recurrent disc lesion at L5/S1, with mild disc bulges at L3/4 and L4/5 and a posterior L4/5 annular fissure.[37]
[37]PCB 100
52 Mr Gardiner considered that the plaintiff was:
“… clearly incapable of performing the vigorous physical labouring employment for which he is qualified. Furthermore, if he were able to be retrained in a less demanding occupation he would still have trouble sitting, standing or walking for more than a few minutes, as well as being unable to drive for more than 15 minutes.”[38]
[38]PCB 100
53 Mr Gardiner considered that the plaintiff’s long-term prognosis was poor and that he was likely to suffer the ongoing effects of his lower back injury into the foreseeable future.
54 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, in September 2016. In his report dated 22 September 2016, Mr Dooley noted the plaintiff had developed a left-sided lumbosacral disc prolapse during the course of his employment, for which he had required surgical intervention on two occasions.
55 On examination of the plaintiff, Mr Dooley noted an absent left ankle jerk. He then noted that straight leg raising on the right was to 80 degrees, but on the left was to 30 degrees.[39] Mr Dooley considered this to be an inconsistent sign, but did not elaborate as to why this was, given the plaintiff’s pathology and need for surgical intervention.
[39]DCB 44B
56 Mr Dooley said that although he expected the plaintiff would suffer ongoing lower back pain, he considered that the constancy and intensity of such ongoing pain was greater than “one would expect to see for his organic condition.”[40] He stated that, in his opinion, the plaintiff had “a psychological reaction to his situation that does influence his ongoing symptoms.”[41]
[40]DCB 44C
[41]DCB 44C
57 Mr Dooley was of the opinion that the plaintiff has a physical capacity to carry out light physical work and clerical duties, but that he should avoid work which involved regular heavy lifting or a lot of bending and manoeuvring. He considered the plaintiff would have a physical capacity to work as a product assembler of light products, a packer of light goods, a rental sales person, a carpark attendant and a product examiner. However, he noted the plaintiff would have difficulty in sitting in the one position for long periods of time, or adopting awkward postures for any length of time.[42]
[42]DCB 44D
58 The defendant also arranged for the plaintiff to be examined by occupational physician, Dr Dominic Yong, in October 2016. In his first report dated 6 October 2016, Dr Yong noted that the plaintiff complained of persisting pain in his lower back, for which it was necessary to vary his posture regularly between sitting and standing, and that he was limited to walking for 15 minutes and driving for 15 to 20 minutes.[43] Dr Yong noted the plaintiff had required two surgical procedures to treat his neuro-compressive discal condition and that he had been left with some lumbar dysfunction.[44]
[43]DCB 44J
[44]DCB 44K
59 Dr Yong then stated that, in his opinion, the plaintiff has a capacity for work within the following restrictions:
·avoid repeated bending and twisting of the back;
·avoid repeated firm pushing or pulling tasks;
·vary posture regularly between sitting, standing and walking;
·avoid lifting more than five kilograms on a repeated basis;
·initial reduction in working hours.[45]
[45]DCB 44L
60 Dr Yong did not comment on the effect, if any, the plaintiff’s opioid usage would have upon his capacity to work. Dr Yong then considered and commented on the employment options recommended in the Nabenet report dated 21 March 2014. In a subsequent report dated 6 December 2016, Dr Yong also considered and commented on Ms Bryant’s report. Dr Yong’s comments regarding each particular employment option will be discussed below in my assessment as to the plaintiff’s loss of earning capacity.
Credibility
61 I consider the plaintiff to be creditworthy and reliable. He gave evidence in a simple, straightforward and believable manner.
62 The plaintiff gave the overwhelming majority of his evidence through an Arabic interpreter. However, on a few occasions he answered spontaneously in English.
63 The plaintiff has undertaken two English courses. He completed the first soon after arriving in Australia in 2008, and attempted to complete the second between the two surgical procedures. He was unable to, however, as his pain was too great.
64 Mr Moulds submitted that the plaintiff’s English was better than he made out. In that regard, he referred to a comment by medico-legal psychiatrist, Dr Entwisle, in a medical report dated 14 July 2015, in which he stated that: “the plaintiff was able to make himself known entirely in English of which he had a good command.”[46]
[46]DCB 43
65 It was not apparent from this report, as to whether an interpreter was present, as appeared to have occurred with the other medico-legal examinations arranged by the defendant.[47] Further, as Dr Entwisle’s comment was not put to the plaintiff in cross-examination, he had no opportunity to dispute it.
[47]For example, with Mr Dooley, Mr Yong and Ms Bryant
66 In her report, Ms Bryant stated that, in her assessment of the plaintiff, he preferred to rely on an interpreter. However, she “gained the strong impression that his comprehension of English was good.”[48] Ms Bryant’s impression of the plaintiff’s capability contrasts with my own observation of the plaintiff in the witness box.
[48] DCB 94e
67 Mr Moulds also cross-examined the plaintiff regarding a Facebook post, in which he had stated “Cherry picking it’s was (sic) awesome”.[49] The plaintiff said he had written this in English with the help of his wife.[50]
[49]Exhibit A – Plaintiff’s Facebook post undated
[50]T 24 L9-12
68 I note that in June 2014, the plaintiff’s physiotherapist commented that he had some difficulty communicating with the plaintiff, as he spoke limited English.
69 I also note that in his report, Paul Hartley stated that the plaintiff had attended his assessment without an interpreter and that:
“…his understanding of the questions and discussions in English was obviously difficult … His English colloquial skills were also very limited and progress was slow.”[51]
[51]PCB 55
70 Having seen and heard the plaintiff give evidence over the course of approximately two hours, I accept the plaintiff is only able to speak and understand limited English. I also accept that he is very limited in his ability to read and write in English.
71 I accept the plaintiff’s evidence that his friend helped him complete his job application with One Force. I also accept that, with the help of his wife, and the dictionary autospell on his phone, he is able to post some comments in English on Facebook. I accept he predominantly speaks in Arabic to his wife, children and friends.
72 The defendant showed approximately eight minutes of video surveillance of the plaintiff, in circumstances where it had undertaken 76.5 hours of surveillance, and obtained 26 minutes 55 seconds of video footage.[52]
[52]T52 L11-18
73 The video surveillance showed the plaintiff taking his daughter to and from school on four consecutive days in August 2016. It also showed him walking in the street with his two youngest children, and lifting his youngest child off the roof of his car. As he did so, it was apparent to me that the plaintiff grimaced in pain. The video surveillance also showed the plaintiff walking to his auntie’s nearby house with a small metal railing, and then returning, with both the railing and a small trowel.
74 I consider the video surveillance was entirely consistent with the plaintiff’s evidence, that he is able to take his daughter to school and help look after his younger children, but that otherwise he does very little else during the day.
Loss of earning capacity
75 To succeed in his application, the plaintiff has the onus of satisfying me that, as at the date of hearing, as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
76 The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[53]
[53]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [25] and [28]
77 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the plaintiff would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[54]
[54]s134AB(38)(f)
78 The plaintiff earned $48,455 gross per annum in the financial year prior to suffering his lower back injury. Mr Brett submitted that it is reasonable to project that the plaintiff would have received salary increases of at least 3 per cent per annum such that, by three years after the injury, the plaintiff would have expected to earn at least $52,000 gross. This equates to a without injury earning figure of $1,000.00 gross per week.
79 However, Mr Moulds submitted that, in circumstances where One Force had gone into liquidation in September 2013, there could be no certainty as to the plaintiff’s prospects of obtaining annual increases in remuneration. Mr Moulds therefore submitted that the relevant without injury earning figure should be $48,455 gross per annum. This equates to a without injury earning figure of $931.83 gross per week
80 It is not necessary for me to decide which of the figures proposed by counsel most fairly represents the plaintiff’s pre-injury earning capacity as, for the reasons I will detail below, I am satisfied on either figure that the plaintiff suffers the requisite loss of earning capacity, and that such a restriction on his earning capacity will be permanent.
81 In assessing the plaintiff’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to the plaintiff’s physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[55] This is a test of physical capacity, not employability, and it involves a consideration of what the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[56]
[55]Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188 at [48]
[56]Ibid [49]
82 Section 134AB(38)(g) of the Act places an onus on the plaintiff to make reasonable attempts to participate in rehabilitation or retraining and states that, in assessing such a claim, I should consider what the plaintiff would be capable of earning if such rehabilitation or retraining had been undertaken.
83 I consider the plaintiff made a concerted effort in respect of his physical rehabilitation. After both surgeries, he underwent physiotherapy for a period of time. He currently undertakes home exercises on a twice daily basis and attends the swimming pool three times a week. Despite two surgical procedures and such therapy, the plaintiff said he continues to suffer constant lower back pain.
84 I note that the plaintiff tried to study English again after suffering his injury, but that his lower back pain prevented him continuing with his course. Although that course was attempted prior to the second surgery, I accept the plaintiff’s evidence that his lower back pain remains constant and prevents him undertaking further study.
85 Although the plaintiff is relatively young, he has now been in Australia for eight years, and still speaks very little English. I also accept that the plaintiff has a limited ability to read or write in English and has no computer skills.
86 I note that the plaintiff has only ever done manual, process-type work in Australia. Therefore, in assessing the plaintiff’s claim for loss of earning capacity, I will have regard to manual process-type work, consistent with the work duties the plaintiff has previously undertaken in Australia, and consistent with his language skills.
87 The doctors all accept that the plaintiff cannot return to his pre-injury duties. The issue to be determined by me is what work, if any, the plaintiff can perform in suitable employment.
88 There is no current medical report from Dr Bahnasawi. Mr Moulds submitted that I should draw a Jones v Dunkel[57] inference, for the failure of the plaintiff to provide such a report. Mr Brett submitted that such an inference can only be used insofar as it assists the defendant’s contrary evidence.
[57](1959) 101 CLR 298
89 The plaintiff gave evidence that every four weeks, Dr Bahnasawi provides him with a certificate of capacity stating that the plaintiff is unfit for all work, and that this certificate is then sent to the insurer. The plaintiff also said that he receives prescription medication, including Oxycontin, on a regular basis from Dr Bahnasawi. He was not challenged on either aspect of this evidence.
90 In considering the totality of the evidence, including my acceptance of the plaintiff as a credible witness, I am not prepared to draw any inference from the absence of an updated report from Dr Bahnasawi.
91 I note that in December 2015, Dr Maartens was hopeful that with physiotherapy, the plaintiff would be capable of returning to some work. I consider this to be an overly optimistic view from the plaintiff’s treating surgeon. I accept the plaintiff’s evidence that he had physiotherapy in the post-surgery period, and that he continues to do exercises at home on a daily basis. However, he still suffers constant lower back pain, which is readily aggravated by activities such as standing, sitting, walking and bending.
92 The defendant relied upon the reports of Nabenet and Ms Bryant, to demonstrate particular jobs which constitute suitable employment for the plaintiff. In assessing the plaintiff’s application, I will now consider each of these in turn.
(i) Product assembler (light products)
93 This job was identified by both Nabenet[58] and Ms Bryant.[59] It is said to involve the assembly of light products, performed at a bench, with the worker able to sit on a stool.[60] It does not require heavy lifting.
[58]DCB 66
[59]DCB 94P
[60]DCB 94P
94 The plaintiff considered that such an occupation would be unsuitable for him, given that he is only able to sit and stand for short periods before his lower back pain increases. The plaintiff also said that sitting on a stool is less comfortable for him than sitting on a chair with proper back support.[61]
[61]PCB 14
95 Mr Dooley considered the plaintiff has the physical capacity to undertake such work, yet also acknowledged the plaintiff’s difficulty in sitting in the one position for long periods of time. [62] Therefore, I consider Mr Dooley’s opinion to be unrealistic, given the plaintiff’s limited sitting tolerance.
[62]DCB 44D
96 Dr Yong considered this job would only be suitable if an individual assessment was done of the workplace to determine that it complied with the plaintiff’s restrictions.
97 As I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged sitting and standing, I do not consider that product assembler (light products) constitutes suitable employment for the plaintiff.
(ii) Carpark attendant
98 This job was recommended by both Nabenet[63] and Ms Bryant.[64] The job description states that the plaintiff would be required to operate the boom gate, collect fees, and may also involve moving cars for customers.
[63]DCB 67
[64]DCB 94S
99 The plaintiff considered that such an occupation would be unsuitable for him, as the need to stand for a prolonged period causes him increased pain. He also considered it likely that his lower back pain would increase if he was required to get in and out of cars on a regular basis. Further, he stated that it would be difficult for him to work in cold temperatures as that also increases his lower back pain.[65]
[65]PCB 15
100 Mr Dooley and Dr Yong both considered this suitable employment for the plaintiff on the basis it was likely to comply with his restrictions. I do not consider either doctor gave sufficient consideration to the plaintiff’s difficulties in sitting and standing, as well as the likelihood his back pain would be aggravated getting in and out of customer cars.
101 As I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged sitting and standing, I do not consider that a car park attendant constitutes suitable employment for the plaintiff.
(iii) Rental sales person (sports equipment)
102 This job was recommended by Nabenet,[66] on the basis that the plaintiff was passionate about sport and had obtained tertiary qualifications in sports teaching.
[66]DCB 68
103 The plaintiff considered that such an occupation would be unsuitable for him, due to his limited English, and the possibility it may involve him bending and lifting boxes of sporting equipment that exceeded his lifting limit of five kilograms.[67]
[67]PCB 15
104 In circumstances where I accept that the plaintiff’s English is limited, I do not consider a job as a retail sales person to be suitable employment for the plaintiff. Further, as I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged sitting, standing, bending and lifting, I do not consider that a retail sales position constitutes suitable employment for the plaintiff.
(iv) Packer (light products)
105 This job was recommended by Nabenet[68] as well as Ms Bryant.[69] This job involves obtaining supplies and packing containers and bags on a conveyor belt, whilst also checking quality. It is a standing job, with seated breaks.
[68]DCB 68
[69]DCB 94Q
106 The plaintiff considered that such an occupation would be unsuitable for him, as it requires him to stand for prolonged periods, which causes him significant increases in his lower back pain. Further, the plaintiff said that bending to pick up and stack cartons, even if they were light, on a repetitive basis, would also increase his lower back pain. He also felt that pushing and pulling a trolley was likely to increase his lower back pain.[70]
[70]PCB 14
107 Mr Dooley considered this job was consistent with the plaintiff’s physical capacity. However, as stated above under product assembler, this opinion seems inconsistent with the plaintiff having limited standing capacity.[71]
[71]DCB 44D
108 Dr Yong stated that this job would require an individual assessment, to ensure that the workplace complied with the plaintiff’s restrictions.[72]
[72]DCB 44M
109 As I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged standing, I do not consider that product assembler (light products) constitutes suitable employment for the plaintiff.
(v) Product examiner
110 This job was recommended by Nabenet.[73] It is said to involve studying products for visible defects and possibly making minor repairs. The Nabenet report did not detail if it was a sitting or standing job and said a worksite assessment would be needed to ensure there were ergonomic seating arrangements.
[73]DCB 69
111 The plaintiff considered that such an occupation would be unsuitable for him, as it would involve prolonged standing and walking, which would result in an increase in his lower back pain. He was also concerned that it may involve him lifting products beyond his lifting restriction of five kilograms.[74]
[74]PCB 16
112 Mr Dooley considered the plaintiff had the physical capacity to do such work.
113 Dr Yong considered this job would require an individual assessment, to ensure that it complied with the plaintiff’s restrictions.
114 As I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged sitting and standing, I do not consider that product examiner constitutes suitable employment for the plaintiff.
(vi) Courier (pathology, dental, floristry)
115 This job was recommended by Ms Bryant.[75] It is said to involve delivering items to customers’ premises, as well as collecting signatures and charges. An example job with Gribbles Pathology said that it may involve driving for between 150 to 300 kilometres per day.[76]
[75]DCB 94O
[76]DCB 94Z
116 The plaintiff considered that such an occupation would be unsuitable for him, as he suffers increased lower back pain if he sits for more than a short period of time.[77] He also had concerns about getting in and out of the car on a regular basis, as he suffers increased lower back pain due to the twisting and turning involved.
[77]PCB 14
117 Mr Dooley was not given the opportunity to comment on this job and Dr Yong considered that, while it could comply with his recommended restrictions, it appeared to be inconsistent with the plaintiff’s reported reduction in driving tolerances.[78]
[78]DCB 44S
118 As I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged sitting, I do not consider that a courier driver constitutes suitable employment for the plaintiff.
(vii) Machine operator
119 This job was recommended by Ms Bryant.[79] She stated that this job involves loading machines with raw materials, operating machines, adjusting and cleaning machines and monitoring quality of goods. Ms Bryant stated that the production of cosmetics, pharmaceuticals and electronic componentry would be low volume goods where the physical demands required are light.[80]
[79]DCB 94R
[80]DCB 94R
120 The plaintiff considered that such an occupation would be unsuitable for him, in circumstances where he has limited standing and sitting tolerance. He also had further concerns regarding the requirement to adjust, clean and repair the machines, as he felt that may require him to undertake bending, twisting, crouching and stretching.[81]
[81]PCB 15
121 Mr Dooley was not given the opportunity to comment on this job and Dr Yong considered that a machine operator role would have similar physical requirements as a process worker and product assembler.[82]
[82]DCB 44T
122 As I accept that the plaintiff suffers constant lower back pain, which is exacerbated by prolonged standing and sitting, I do not consider that a machine operator constitutes suitable employment for the plaintiff.
123 The reports of Nabenet, Ms Bryant, Mr Dooley and Dr Yong, make no comment and give no consideration to the plaintiff’s ongoing use of opioid-based medication.
124 I accept that the plaintiff takes OxyContin on a daily basis and that it makes him drowsy. I consider such medication would impact upon his ability to concentrate, to operate machinery and to drive a car. In addition to the reasons detailed above, I consider this to further demonstrate the unsuitability of the jobs proposed by Nabenet and Ms Bryant for the plaintiff.
Conclusions
125 The Court of Appeal recently observed in Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 that an assessment as to whether a plaintiff has established the requisite loss of earning capacity need not be determined solely by reference to the medical evidence, but instead “on a full and proper consideration of all of the evidence in the application”.[83]
[83]Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 Paragraph 131
126 Having considered all of the evidence, and accepting the plaintiff as an honest and reliable witness, for the reasons detailed above, I am satisfied that as a consequence of his lower back injury, the plaintiff suffers the requisite 40 per cent loss of his earning capacity. I am also satisfied this loss will be permanent.
127 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[84] Given my acceptance that the plaintiff’s lower back injury prevents him working in suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[84]s134AB(38)(c)
128 I will make the consequent orders.
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