Musgrave v Ron Finemore Liquid Haulage Pty Ltd
[2014] VCC 322
•26 March 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-05497
| PAUL McGREGOR MUSGRAVE | Plaintiff |
| v | |
| RON FINEMORE LIQUID HAULAGE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 13 and 14 March 2014 | |
DATE OF JUDGMENT: | 26 March 2014 | |
CASE MAY BE CITED AS: | Musgrave v Ron Finemore Liquid Haulage Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 322 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr R Morrow | Nevin Lenne & Gross |
| For the Defendant | Ms K Galpin with Mr D Oldfield | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 26 October 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. 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 case is the lumbar spine.
5 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.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(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”.
9 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
15 The plaintiff relied upon two affidavits and gave viva voce evidence. 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
16 The plaintiff is aged fifty three, having been born in November 1960.
17 The plaintiff attended school until Year 10 and thereafter had a number of jobs. He did an apprenticeship as a diesel mechanic and then worked as an owner/driver for thirteen years carting freight between Newcastle and Melbourne.
18 The plaintiff then worked for his parents at their pizza shop for about four years and did interstate truck driving for a number of years.
19 The plaintiff commenced employment with the defendant in about 2004 as a tallow and fuel driver doing deliveries between Wodonga and Melbourne and Holbrook. He was allocated a tallow tanker. If one was not available, he drove a petrol tanker.[3]
[3]Transcript “T”9
20 The work was often fairly physical and involved driving a B-Double. The plaintiff was required to lift and drag heavy fuel hoses. Delivering tallow was a lot heavier work.
21 The plaintiff suffered an episode of back injury in May 2006 when lifting a tank manifold. The pain at that stage was in the middle of his back, higher up from where it is now.
22 The plaintiff suffered a neck and back strain, following which he attended his general practitioner and had massage with Scott Hargrave. The condition eventually resolved after a period of some weeks[4] and he managed to return to normal work. The plaintiff thought he lodged a claim in relation to this incident.
[4]T10
23 After the injury with the manifold, which weighed about 25 kilograms, in May 2006, the plaintiff was always careful to avoid that sort of lifting.[5]
[5]T9
24 On the said date, in the course of making a delivery of diesel fuel at a truck stop in Holbrook, the plaintiff attempted to pick up a fuel hose, which ought to have been relatively empty and light, in order to drain any remaining fuel back into the tank. Suddenly and unexpectedly as a result of hose still being full of fuel and heavy, he immediately experienced pain in his back, going down to both buttocks (“the incident”).
25 The plaintiff managed to drive the truck back to the depot. Later that night at home, when he went to the toilet, his back locked up and he collapsed. His daughter later drove him to Scott Hargrave for massage and acupuncture treatment.
26 The plaintiff saw his own doctor, Dr Mobilia, on 29 October 2007 and he recommended exercise, heat therapy and anti-inflammatories. The plaintiff had been seeing him as his treating general practitioner for many, many years.[6]
[6]T13
27 The plaintiff took a week off work on leave. He returned on modified duties driving the lighter fuel tankers rather than tallow tankers. The fuel tankers had newer air suspension seats which made driving more tolerable. However, in these vehicles, when driving back from Sydney, by the time he got to Goulbourn, the pain would increase to an almost intolerable level.
28 The plaintiff’s Claim for Compensation dated 8 November 2007 was accepted.
29 In the meantime, the plaintiff continued to suffer from ongoing back pain going down to his buttocks. Dr Mobilia arranged an MRI scan on 13 February 2008, which revealed disc bulges at L4-5 and L5-S1. During this time, the plaintiff was also having massage and taking Nurofen.
30 The plaintiff continued to attend his general practitioner from time to time with respect to his back pain. Doing the lighter duties delivering fuel meant he no longer had to climb up and down the front and rear of the tank in order to open the hatches, nor did he have to lift the large and heavy manifold on the side of the truck.
31 The plaintiff agreed that in the first year he was coping quite well with modified duties unless something happened like working a 14-hour day, as he reported to his doctor on 5 March 2008.[7]
[7]T20
32 The plaintiff agreed he had some time off work in 2008 and did some light duties, because he was having an Achilles tendon problem. He was prescribed Panadeine Forte and Endone for that condition in 2008 and 2009.
33 The plaintiff returned to limited repetitive bending and lifting on fuel only.[8] He did not return to tallow because it was heavier work.
[8]T14
34 The plaintiff continued on the same restrictions until his employment was withdrawn in early 2012. His hours were reduced from 12 to 14-hour shifts to 10.5 hours. His shifts were reduced from five to four a week with gaps in between.[9]
[9]T15
35 The defendant would give the plaintiff a day off after a long drive because it knew he had a sore back. It had been set up that the plaintiff would work two days and then have a day off and then he would do the night time easy work.[10]
[10]T24
36 Any aggravation caused the plaintiff to stop work. There was a problem driving to Wagga on the rough road. A faulty seat exacerbated his back pain. These incidents precipitated the plaintiff taking time off work. At other times he took time off work, using his annual leave, when his back was hurting.[11]
[11]T23
37 During that time, the plaintiff was having massage and Pilates. He was taking over-the-counter medication, such as Nurofen and Panadol Osteo.
38 The plaintiff agreed he was first prescribed Panadol Osteo and Celebrex for his back in mid 2012. Before that, he was just buying things from the pharmacy for himself.[12]
[12]T24
39 The plaintiff continued to perform these duties with ongoing difficulties until January 2012, when he was advised that there was no longer any suitable work for him.
40 The plaintiff was quite shocked when he was put off work.[13] He was managing work and wanted to keep working. In the last few months before the return to work program was withdrawn, the plaintiff’s back was becoming more and more painful on every trip to Melbourne and back. He was “questioning himself” whether he would be able to continue, and then his job was withdrawn. He did not know how long he could keep going; he “had reservations about it” but he tried to continue for as long as he could. Managing his lower back pain became harder and harder.[14]
[13]T19
[14]T19
41 Just before he finished up, if the plaintiff hit a rough road on the Hume to Melbourne, he would have pain for seven or eight days.[15]
[15]T33
42 With restriction, the plaintiff tried to keep going as long as he could to keep driving. He was prepared to keep driving but the pain was increasing. He was in agonising pain leaning over the steering wheel to bring the truck home from Melbourne [16] He was on Nurofen and Panadol as he could not drive a petrol tanker if he was full of strong medication.[17]
[16]T31
[17]T32
43 The plaintiff’s work was withdrawn because the defendant required all drivers to do tallow work as well as fuel, and the plaintiff just could not do it.[18]
[18]T25
44 The plaintiff last worked on 2 January 2012. He came to work that day. Having been told his truck was being serviced, the plaintiff was then advised his return to work was being withdrawn as he could not do the job anymore.[19]
[19]T27
45 In June 2012, the plaintiff was handed a formal notice by the defendant advising his employment was to be effectively terminated on the basis he was no longer fit for any pre-injury duties. This situation devastated him as he had worked for the defendant for eight years.
46 Since that time, the plaintiff’s back progressively worsened and he did not think he would be able to work even as a fuel delivery driver. Just driving a car for prolonged periods could be difficult.
47 As a result of the deterioration in his condition, the plaintiff had not looked for work as he did not feel actually fit to do any. He was not computer literate and he had acquired few, if any, other skills other than driving.
48 When he swore his November 2012 affidavit, the plaintiff continued to suffer from ongoing and constant low back pain radiating down his legs, worse on the left, down his calves. That pain affected his ability to get a good night’s sleep. He generally woke at 3.00am and had to take painkillers.
49 The plaintiff’s injury also had a significant effect on his sex life. That was one of the reasons his relationship finished in about September 2010, as well as the significant drop in his income on restricted duties.
50 The plaintiff was then seeing the general practitioner once a fortnight or once a month. He was certified unfit for all work. He had recently been referred to a neurosurgeon, Mr McMahon.
51 The plaintiff had stopped having massage and then relied on medications, including Nurofen three times a day, Panadol Osteo, six a day, and Celebrex daily.
52 Because of his pain, the plaintiff was restricted in terms of his ability to do any twisting, bending, climbing or heavy lifting. He had difficulty with prolonged posture. He could probably stand for about fifteen minutes or sit for the same time before it became uncomfortable. He had difficulty sitting in the lounge suite at home for any period of time. He had problems walking long distances, or driving for a prolonged period.
53 In a normal day, the plaintiff sometimes walks down the street, half a kilometre, to visit a friend. By the time he gets to his house, the plaintiff’s back pain is worse.
54 The plaintiff was restricted in domestic activities such as mowing the lawn or using a Whipper Snipper. He found it difficult to vacuum his unit where he lived alone. He had problems bending to get things out of the oven. It was difficult washing the dishes as he had to be on his feet for a long period of time. He often relied on his daughter to come over and help him with domestic tasks.
55 Prior to his injury, the plaintiff had always been a very fit and active person. In the past, they regularly went out as a family water skiing. The plaintiff’s father owned a boat. There is no way the plaintiff could water ski now.
56 The plaintiff had always enjoyed riding a motorbike and currently owns a Harley. In the past, he regularly rode to places such as Phillip Island and the mountains with his brother, who also owned a bike. These days the plaintiff rarely takes the bike out and he might take it for 10 or 15 minutes to the local shops, just to keep the battery charged.
57 The plaintiff and his brother used to regularly go to the Grand Prix at Phillip Island. The plaintiff enjoyed this immensely. There is no way the plaintiff could ride there now. He also enjoyed motocross riding but had not engaged in that activity for some years prior to his injury.
58 The plaintiff still rides a motorbike but it is not the same activity as before he was injured. He can only ride short distances down the street or to his daughter’s house, or occasionally to the Albury CBD. He generally rides the bike on these short trips about twice a month. Even the shorter trips cause his back pain to increase.
59 Once, the plaintiff rode about 20 minutes across to Wodonga to have breakfast with friends who were going on a two-hour bike ride. He just had breakfast and they headed off on the ride. He greatly misses going for longer bike rides as that was an important part of his social and recreational life and his friends have stopped calling him to come with them.
60 The plaintiff can ride his motorbike for about 3 or 4 kilometres and that is as far as he can go but he rides it only once every three or four weeks.
61 The last time he took it to Phillip Island was four years ago and after his injury but it was too much for him.[20]
[20]T48
62 In the past, the plaintiff also enjoyed fishing, amongst other things, for trout. He was now restricted in that regard as it was hard to cross difficult terrain and doing so tended to aggravate his back pain. The plaintiff still tried to go fishing with his daughter on the Murray but it was nowhere near as pleasurable as before.
63 The plaintiff recently deposed that it is too hard to go fishing now and he is worried he might twist his back. The last time he went he had difficulty.
64 In the past, the plaintiff could do all service work on his car, change the oil, brake pads and rotate the wheels. That was now too difficult because of his back pain. He had difficulties with servicing the car and washing it.
65 Over the last year, the plaintiff has not attempted to service his car or go fishing. He knows that with the increase in back pain he would not have the ability to do those activities.
66 In the past, the plaintiff used to socialise a lot, regularly going out to the pub. He now tended to go less frequently. He also went to local football games and followed his daughter’s netball. He was now restricted in his attendance as it involved being on his feet for considerable times, which he could not manage.
67 The plaintiff no longer attends football matches in Albury. He no longer goes to watch his daughters play basketball because it is painful to drive and sit during matches. In recent times, the furthest the plaintiff has driven is to Wangaratta or to visit his parents in Holbrook.
68 In cross-examination, the plaintiff agreed he could go to the pub if he wanted to.[21] He no longer barracks for a local football team and his daughters are too old to play netball.[22]
[21]T47
[22]T47
69 When he lived in Jindera, the plaintiff had a very large garden and he spent almost every weekend performing all manner of gardening duties. Although he had moved from that house, those types of gardening activities were now beyond him.
70 The plaintiff recently deposed that he had taken steps to get rid of the lawn at his unit, spraying it with weedkiller then mowing it very short. The twisting action mowing caused the plaintiff severe back pain. The body corporate now maintains the front lawn.
71 The plaintiff considered he had been seriously injured due to past loss of wages, future loss of earning capacity and the effects of his back injury on his lifestyle and enjoyment of life.
72 The plaintiff swore a further affidavit on 5 March 2014.
73 The plaintiff has continued to suffer back pain which is constant and varies in intensity and is worsened by activity, especially lifting. He also suffers pain travelling down his left leg into his foot. The pain is sharp and present most of the time. On the right side, the pain travels down into his calf just below the knee.
74 The plaintiff explained he was in pain whilst in the witnessbox because he was standing on his hands (leaning forward, taking his weight on his hands).[23]
[23]T44
75 The plaintiff has great difficulty with any lifting or bending. When he recently tried to lift his 10-kilogram granddaughter, his back pain became more severe.
76 The plaintiff continues to see his general practitioner monthly and sometimes weekly. The plaintiff currently takes two Panadol Osteo three times a day, Celebrex twice a day, 75 milligrams of Lyrica twice a day and other medication similar to valium.
77 When the plaintiff saw neurosurgeon, Mr McMahon, in 2012, he advised the plaintiff against surgery and instead referred him to Dr Lim for pain management. On the one visit, Dr Lim offered the plaintiff inpatient pain management in Melbourne but he was not happy doing it there as all his family lived around Albury. Instead, Dr Lim prescribed Lyrica, initially once a day, and twice a day when needed.
78 That medication decreases the severity of the plaintiff’s back pain a little but it makes him drowsy, particularly if he takes two tablets.
79 The plaintiff wakes with back pain two or three times each night. He generally gets up and takes more Panadol Osteo and walks around before trying to get more sleep.
80 The plaintiff wanted to see how the Lyrica went before he went to Dr Todhunter. He first started that medication in February 2013 and there was an improvement in his symptoms.
81 When he saw Dr Swift, a psychiatrist, for medico-legal purposes, he suggested the plaintiff take some medication to help him sleep and suggested Dr Mobilia organise a prescription in that regard.[24] It was something like valium. That helped the plaintiff sleep at night, but he still has problems.[25]
[24]T35
[25]T36
82 Last week, the plaintiff discussed with Dr Mobilia attending pain management. The plan was to seek a referral to Dr Todhunter. The plaintiff hoped there would be a further improvement in his condition with that treatment. However, he noted that that if he did not take pills, and they are out of his system, the pain comes back.[26]
[26]T41
83 Over the last year, the plaintiff has continued to visit Thailand. He generally stays for a few weeks. It is a cheaper place to live and the weather is warmer and easier on his back. He generally goes when the weather in Albury is colder. He has a regular hotel at Pattaya where he stays and he sits under a fan or around the pool, which he finds helps him get out, as otherwise he would spend a long time sitting at home in his unit by himself.
84 When he goes to Thailand, the plaintiff travels very lightly with a small bag and mostly buys light shirts and shorts when he is over there. He likes to sit around and watch people come and go.
85 The plaintiff explained he could travel on a plane because he gets up and walks around and takes his medication with him and he also takes a tranquilizer which he gets in Thailand called Atarax which is a sleeping pill.
86 The plaintiff explained that he could sleep on the plane for six to seven hours but still have problems sleeping at home. He was not sure if he could get that medication in Australia.[27]
[27]T45
87 The plaintiff had not told doctors about his many trips to Thailand because they did not really actually go into any detail.[28] He does not do anything over there that he does not do at home, except he is not sitting in his lounge room looking out the window because at home he is basically housebound because of pain. He had nothing to hide and he told his doctor about it.
[28]T45
88 The plaintiff denied that the reason the relationship with his wife broke up was related more to his trips than work.[29]
[29]T39
89 The plaintiff does not believe there is any job he has the ability to perform. His medication affects his concentration. He finds when sitting, after about ten to fifteen minutes the pain worsens. Although he can stand longer before he suffers an increase in pain, generally he can stand for only about twenty minutes or so.
90 The plaintiff greatly misses work, as his job was also a big part of his social life. If he could, he would be working now. His back injury is worsening and the pain he suffers is gradually becoming more severe.
91 If the plaintiff’s pain reduces and he can get around more, he could not think of any job he could do at this stage.[30] He could not go back to truck driving work. He would have to get in and out of the truck all the time which would cause him problems. He would have to climb in and out to unload and slide the big curtains back and there would be twisting which he could not do because of the pain.
[30]T41
92 Even if the pain improved he would still be on Lyrica and Celebrex and possibly not quite suitable for driving a truck around town.[31]
[31]T42
93 The plaintiff did not think that, taking Lyrica, he could get back to shuttle work again because the pain was too great. Lyrica was a strong medication and if he took two, he “would fall over.”
94 The plaintiff is in receipt of weekly payments. He was earning $75,000 a year at the time he stopped work with the defendant. Other workers now delivering tallow, such as his brother, earn over $100,000. Some friends in this role now earn $2,200 per week. Tallow work involves an extra payment as, in addition to driving, there was loading work for two-and-a-half hours.[32]
[32]T37
95 The plaintiff’s income in the year before he ceased work increased from $66,000 to $75,000 pursuant to a work agreement. Decreases in income prior to the incident occurred were when the tallow industry was quiet.[33]
[33]T38
Schedule of the Plaintiff’s income
Year Ending Gross Earnings 30 June 2004 $12,209 30 June 2005 $48,405 30 June 2006 $63,210 30 June 2007 $59,847*
*injury October 2007
30 June 2008 $54,588 30 June 2009 $66,180 30 June 2010 $66,804 30 June 2011 $75,841*
*ceased work January 2012
30 June 2012 $66,073 30 June 2013 $58,305
Correspondence
96 The plaintiff was advised in February 2012 that the defendant was reviewing his capacity to return to his pre-injury position as a truck driver. His general practitioner was requested to provide information about the plaintiff’s current and future work capacity.
97 By a letter dated 15 June 2012, the plaintiff was advised, unfortunately, the medical constraints imposed by his doctor prevented him from carrying out the inherent requirements of his pre-injury position and that was likely to continue indefinitely. There was the suggestion of a meeting to discuss his further employment in August 2012.
Claim documentation
98 The plaintiff lodged a Claim for Compensation detailing an injury on 26 October 2007 when his lower back clicked unexpectedly whilst checking if a discharge hose had product in it. He suffered a muscular strain. The injury was reported.
99 The Employer Claim Form set out the plaintiff was working 50 hours a week, excluding overtime, at $22.27 an hour. Average weekly earnings were $779.31 plus overtime.
100 The plaintiff put in a claim seeking impairment benefits for his low back and lumbar spine on 2 November 2012. The claim was accepted by QBE on 12 March 2013 for an injury on 26 October 2007 involving aggravation of the lumbar spine injury. Liability was rejected for an injury to both lower limbs.
Treaters
101 The plaintiff attended Scott Hargrave for massage on 26 October 2007 with acute low-back pain into the right leg. The plaintiff also saw him in January 2008 following a problem in November 2007 driving an older truck.
Extracts from the Jindera Medical Clinic notes
Date Entry 5 June 2006 Injured his back at work prior to going on holidays. 29 October 2007 The incident noted and a report of a muscular back strain principally on the right buttock. 11 December 2007 Slight improvement to the plaintiff’s back, but he was ambushed into using an older truck and working 14 hours. 7 January 2008 Back pain improving but aggravated by bending, an MRI scan requested. 7 February 2008 Still having significant lower back pain bilaterally if working more than 12 hours in the truck, Melbourne and back, unloading fuel, no abnormality, but if he has to go to Holbrook, aches, radiating pain. March 2008 14-hour day and long shifts. 14 April 2008 Modified duties. 23 April 2008 Full-time hours, modified duties. 9 May 2008 Ongoing lumbar spinal pain. 26 May 2008 Wagga, truck not working with suspension. 2 June 2008 Improving slowly. 4 July (24 May 2008) Driving Kenworth truck with suspension seat faulty, aggravated lumbar pain. 15 July 2008 Back locked up with no foam seating. September 2008 Achilles tendon problem. Prescription of Panadeine Forte. Time off work because of the Achilles problem. Office duty. 16 December 2008 Back claim closed 11/11/08. Drove truck, developed low-back pain, attempting every second day that week. 31 December 2008 Problems with a 9-hour day February 2009 Lumbar spinal pain with longer sitting. 25 September 2009 Considered steroid injection. 14 October 2009 Still unwell to return to work with back pain. 17 December 2009 Driving long hours overnight, back pain aggravated. January 2009 Nothing had changed. 1 November 2010 Back pain worsened over last weekend. 10 and 29 November 2010 Still getting sciatica. 10 January 2011 Rough roads exacerbated back pain. 19 January 2011 Back pain improving. 20 September 2011 Worked 12 hours sitting in a truck. 5 November 2011 14-hour shift aggravated back pain. 9 December 2011 Back locked up. 30 January 2011 Spinal complaints. 6 March 2012 Can no longer sit in a truck. 18 June 2012 Back pain progressively worse.
102 Dr Mobilia reported in February 2014 that the plaintiff sustained a lumbar injury as a result of the incident. Prior thereto, he had had no history of pre-existing lumbar spinal issues.
103 Dr Mobilia thought there was a permanent impairment and loss of functioning, with a tendency of pain and dysfunction to increase in the future, with varying lumbar pain and sciatica and no spontaneous resolution.
104 Dr Mobilia noted the plaintiff did not do many of his pre-accident activities of dancing, swimming, barbecues, picnics, motorbike riding, pushbike riding and country drives. He could ride his motorbike a short distance, and drove his vehicle in similar circumstances and distances. The plaintiff had bought a vehicle with higher ground elevation to help his back injury. He claimed he was much more isolated in terms of social functioning, not being able to go riding with his friends, who had abandoned him.
105 The plaintiff was restricted to activities of daily living in a much more restricted way, doing very limited housework and requiring assistance from his daughter.
106 Dr Mobilia thought, due to his injuries, the plaintiff would never be able to perform his regular duties as a truck driver. There were problems with bending and twisting and lifting greater than 5 to 10 kilograms, problems with squatting, manual handling, limited walking to half a kilometre, and effectively the plaintiff could not run due to pain. He had difficulties getting in and out of a standard vehicle, thus he had purchased a four-wheel drive.
107 Given the plaintiff’s age of fifty-three and there being no relevant vocational education or training upon which he could draw as a means to alternative employment, Dr Mobilia did not think the plaintiff was suitable for alternative employment, given the career as a truck driver for the best part of his life. On that basis, the plaintiff had no realistic capacity to undertake suitable full or part-time employment.
108 The plaintiff’s current medication related to his work injury was Panadol Osteo, two tablets; Celebrex, 200 milligrams daily; Lyrica, 75 milligrams, and Avanza, 15 milligrams. That medication regime was subject to change, depending on the dynamics of the plaintiff’s presentation.
109 Dr Mobilia thought the plaintiff required proactive physiotherapy, which to date had not been provided.
110 Dr Mobilia would expect further deterioration in the plaintiff’s lumbar spinal anatomical pathology. He expected the plaintiff would require surgery in the foreseeable future. He noted the plaintiff’s prognosis in relation to employment was poor, and in a realistic sense, he would not be able to find or perform suitable work either on a casual part-time or full-time basis in the future.
111 The plaintiff was referred by Dr Mobilia to Mr McMahon, neurosurgeon. He advised Dr McMahon that the plaintiff had been symptomatic since 2008. He mentioned pain dysfunction was worsening over the last few months, with increasingly disturbed sleep.
112 Mr McMahon reported in November 2013 that he saw the plaintiff on 1 November 2012.
113 Mr McMahon noted the MRI showed mild left L5‑S1 lateral recess stenosis causing some mild compression of the left S1 nerve root. He did not believe surgery was warranted and he referred the plaintiff to Dr Lim for pain management. The plaintiff was seen by Dr Lim in February 2013, who then considered there was a combination of mechanical back pain as well as a degree of central sensitisation.
114 The plaintiff was commenced on a trial of Lyrica aimed at reducing the central sensitisation, and he was referred for rehabilitation.
115 Mr McMahon diagnosed L4‑5 and L5‑S1 intervertebral disc degeneration with a small left L5‑S1 disc prolapse and Chronic Pain Syndrome with central sensitisation.
116 Mr McMahon believed that the work with the defendant was a significant contributing factor. He thought the plaintiff had a significant lumbar spine strain with persistent symptoms and it was unlikely he would return to physical work activities. Therefore, he thought the plaintiff had suffered a permanent loss of function of his low back as a result of the injury.
117 Mr McMahon thought the main restrictions were going to be with the plaintiff’s work capacity in the future, and there may be some restriction of his life generally. He expected the plaintiff would be able to continue to perform all activities of daily living and most of his social and recreational activity. Any long-term incapacity would certainly depend on the response to Dr Lim’s program.
118 Mr McMahon thought it very likely the plaintiff would continue to be totally incapacitated for performing physical work into the future on the basis of the intervertebral disc degeneration and his current pain levels. He thought it was likely the symptoms would continue into the future, given the lack of improvement and the time the incident occurred.
119 Mr McMahon envisaged the plaintiff would be totally and permanently incapacitated from performing physical work activities such as bending below knee height, reaching upwards above head height, twisting, lifting and carrying objects greater than 5 to 10 kilograms, twisting to get in and out of vehicles, and prolonged postures. He thought that would last into the foreseeable future.
120 Mr McMahon thought the plaintiff could be involved in light physical work, including office and desk type work, with a restriction of 5 to 10 kilograms. He did not feel the plaintiff could be involved in physical work.
121 Mr McMahon noted the plaintiff had previously worked as a tanker driver with long periods of sitting and getting in and out of the truck, as well as physical work with fuel hoses. Mr McMahon did not feel any of those activities would be possible in the future; therefore the plaintiff was totally and permanently incapacitated in that regard.
122 On the basis of his age, education, and previous work experience, Mr McMahon thought it may well prove impossible for the plaintiff to be re‑employed in light work activities.
123 Mr McMahon thought certainly there was a possibility of retraining but that would be limited, given the plaintiff’s age and previous work activities. If there was desk and office type work available for full work hours, then a return to employment would certainly be possible, but hours would have to be decreased if there were ongoing symptoms.
124 Mr McMahon concluded the plaintiff’s prognosis for a return to physical work activities was extremely poor; however, if he did respond to chronic pain management and rehabilitation, he could return to light work duties such as office and desk work if that could be arranged. However, Mr McMahon anticipated the plaintiff’s current symptoms would continue into the foreseeable future and his work prospects may be very poor.
Investigations
125 The plaintiff underwent an MRI scan of the lumbar spine organised by Dr Mobilia on 13 February 2008.
126 It was reported there was L4‑5 and L5‑S1 disc degeneration with loss of T2 signal and posterior annular bulges as described. There was no focal disc protrusion or nerve root compression demonstrated.
Medico-legal
127 On 15 May 2009, the Medical Panel found that the plaintiff was suffering from an aggravation of lumbar degenerative disc disease with referred pain to the legs but without radiculopathy relevant to the claimed injury.
128 Dr Rowe, occupational physician, examined the plaintiff on behalf of QBE in November 2009 to advise as to future treatment.
129 Dr Rowe concluded it would appropriate for there to be a more active exercise program where the plaintiff did the work rather than external sources such as a general practitioner or physiotherapist.
130 Dr Rowe then thought the aggravation had not ceased. The plaintiff had some degeneration in the back and disc bulges representing degenerative change, but the aggravation was dependent on the work he performed. Dr Rowe noted the plaintiff worked long hours, and if he did not have consecutive shifts, the plaintiff said he could cope and Dr Rowe thought that did not seem unreasonable.
131 Mr Moran, orthopaedic surgeon, examined the plaintiff on behalf of QBE in February 2013 for the purposes of an AMA assessment.
132 Mr Moran thought the plaintiff had aggravated L4‑5 and L5‑S1 disc degeneration. The diagnosis was established after viewing the February 2008 MRI. Mr Moran thought the plaintiff’s condition had stabilised.
133 Mr Moran did not comment of the plaintiff’s employment capacity.
134 Dr Swift, psychiatrist, examined the plaintiff on behalf of QBE in October 2013.
135 Dr Swift noted the plaintiff was not on any anti-depressant and would benefit from Avanza, 30 to 60 milligrams a day, or alternatively, Cymbalta, 60 to 100 milligrams a day. In his view, the plaintiff would also benefit from attendance at a pain management program.
136 Dr Swift diagnosed a Chronic Adjustment Disorder with moderately severe generalised anxiety and mild to moderate depression. In addition, he thought the plaintiff had a Chronic Pain Syndrome which was of musculoskeletal origin affecting his lower back and accompanied by sciatica in both legs.
137 Dr Swift thought, given the level of the plaintiff’s pain and its unremitting nature, together with the fluctuating nature of his psychiatric symptoms, he was unlikely to obtain full-time work. Dr Swift thought anti-depressant medication would produce moderate improvement in the depression and anxiety components of the plaintiff’s illness.
138 Dr Swift considered the plaintiff needed training in pain management and would benefit from such a program. He also needed referral to a psychiatrist to find a suitable anti-depressant and anti-anxiety medication.
139 Dr Kevin Marks, occupational physician, examined the plaintiff on behalf of QBE in October 2013.
140 Dr Marks commented that the cause for the plaintiff’s back and leg pain had not been established, with the MRI scan in 2008 demonstrating mild degenerative changes only. He thought it may be true that the plaintiff had an aggravation of pre-existing disc degeneration, but that was not able to be proved.
141 Dr Marks considered diagnosis was possibly discogenic back pain from degenerative disc disease. He noted the plaintiff’s condition remained the same but it was hard to see the original incident still being the cause, although he could not rule it out. It had been assumed that the plaintiff’s original incident aggravated pre-existing degenerative disc disease.
142 Dr Marks noted it was probably impossible to say, although the literature suggested disc damage would repair in six to eighteen months. He noted the plaintiff’s condition remained unchanged, and, although he thought on examination there was some exaggeration, it was still probable the plaintiff was suffering discogenic back pain that in some patients can go on without end.
143 Dr Marks thought the plaintiff had little or no work capacity, and after this long was not likely to work again. He considered the plaintiff was not capable of undertaking any work because of ongoing discogenic pain. He was limited in his ability to sit for any length of time and was unable to lean or bend forward for any length of time. This incapacity was indefinite.
144 Dr Marks thought there were very limited vocational or job-seeking activities appropriate for which the plaintiff had a capacity.
145 Dr Marks thought the current medication was appropriate. He noted the plaintiff was not undergoing any active treatment or a home exercise program, and that he should at least be able to perform lumbar stabilisation exercises and should be encouraged to do so.
146 Mr John O’Brien, orthopaedic surgeon, examining the plaintiff in February 2014.
147 Mr O’Brien noted signs that currently were subjective, with quite marked restriction of lumbar movement accompanied by pain without any signs of nerve root compression or radiculopathy. He noted the MRI scan six years ago indicated the presence of degenerative change but without any nerve root compromise.
148 Mr O’Brien thought the plaintiff now presented with chronic non-specific back and bilateral leg pain. He considered it was difficult on a purely clinical basis to define the specific pathology underlying pain generation. Mr O’Brien thought previous x‑rays suggested the problem may emanate from lumbar spondylosis which had been aggravated by the incident. He thought that employment was a significant contributing factor to the plaintiff’s chronic back pain.
149 Mr O’Brien regarded the clinical condition as stable. He noted that it was unfortunate the plaintiff had been unable to undergo an appropriate multi-disciplinary pain management program. As a result of well-established chronic back and leg pain, he thought the plaintiff’s prognosis was poor.
150 Mr O’Brien noted the plaintiff, in fact, reported moderate disability associated with his continuing symptoms. Signs indicated a very definite physical restriction.
151 Mr O’Brien would consider, in fact, from a physical perspective, the plaintiff could not undertake his pre-injury occupation, and, in fact, he would consider the plaintiff was now physically incapable of pursuing suitable employment.
152 Mr O’Brien thought, on a permanent basis, the plaintiff was totally and permanently incapacitated. In fact, he would consider the plaintiff would not return to any form of gainful employment, and he had no doubt the plaintiff would remain significantly limited in his general domestic, social and recreational activities on a permanent basis. He noted the plaintiff clearly had sustained a permanent loss of function of his low back and lumbar spine as a result of this described injury.
Defendant’s medical evidence
153 Dr Mobilia certified the plaintiff fit for modified duties in late 2011 to mid 2012, working maximum of “11-hour shifts/shuttle work ok” and limited repetitive bending and rotational movements above lumbar spine.
154 Mr Clive Jones, orthopaedic surgeon, saw the plaintiff in June 2008. The plaintiff was then taking Nurofen and working a four-day roster with days off in between.
155 On examination, there was a variable level of low backache with pain in both buttocks and the back of both thighs. There was limited painful spinal flexion. Straight leg raising was to 30 degrees bilaterally. There were no abnormal neurological signs.
156 Mr Jones noted the MRI scan of February 2008 showed the discs were a little swollen at L4‑5 and L5‑S1 but did not compress the adjacent neural structures.
157 Mr Jones thought the plaintiff had ongoing symptoms of buttock and thigh pain, the underlying cause appearing to be non-compressive symptomatic disc degeneration related to the normal aggravated ageing process. He thought it was not caused by the incident, but may have been aggravated at least in part by it.
158 Mr Jones thought the work component had probably settled by now; however, the degenerative condition had not resolved and was still contributing to the plaintiff’s symptoms. He considered work incapacity had been relatively minor.
159 Mr Jones thought the restrictions imposed at that time seemed appropriate, and the plaintiff needed rest days in between long periods of driving. He thought current massage treatment was used to help degeneration rather than a specific injury.
160 Mr Kudelka, orthopaedic surgeon, examined the plaintiff in October 2012.
161 Mr Kudelka noted the plaintiff had back pain and sciatica due to degenerative changes in the lower lumbar spine. He thought they were age related and constitutional, but a significant aggravation occurred with the mechanical strain in 2007, symptoms from which had not resolved.
162 In Mr Kudelka’s view, the plaintiff cold not return to his pre-injury duties as a fuel tanker driver and he had a limited capacity for work.
163 Mr Kudelka noted that the vocational assessment suggested the suitable employment options of driving instructor, transport clerk, spare parts interpreter and train and network controller, which he thought were suitable from an orthopaedic point of view, but the plaintiff’s education, qualifications, background and training may not be adequate to fulfil those roles.
164 Mr Kudelka recommended duties modified with restrictions in prolonged bending, standing, stooping, lifting and carrying weights in excess of 5 to 10 kilograms. He thought the plaintiff had a limited current work capacity because of restricted mechanical function in the lumbar spine.
165 Mr Kudelka considered the plaintiff’s symptoms would never completely resolve but could be lessened and probably improved with prolonged conservative and supportive treatment.
166 Mr Kudelka thought physical tasks involved in driving heavy trucks, such as bending, stooping, lifting and climbing up and down ladders, had aggravated the plaintiff’s back condition and caused his present level of partial work-related impairment with respect to loss of function of the lumbar spine. He thought the plaintiff’s employment still materially contributed to his ongoing incapacity.
167 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in October 2013.
168 On examination, there was tenderness of the lower lumbar region and some restriction of movement, with bilateral straight leg raising to 20 degrees. There were no neurological abnormalities.
169 Mr Dooley noted the February 2008 MRI scan reported degeneration at L4‑5 and L5‑S1 levels with no evidence of major disc prolapse or of nerve-root entrapment.
170 Mr Dooley considered that in the incident, the plaintiff aggravated underlying degenerative disc disease of the lower lumbar spine, and that aggravation would account for ongoing intermittent low back pain and occasional lower limb pain.
171 Mr Dooley also thought the plaintiff had had a psychological reaction to his situation and that was influencing his ongoing symptoms.
172 Accepting the soft tissue injury sustained, Mr Dooley considered that the constancy and intensity of the plaintiff’s ongoing pain was to a degree greater than he would expect to see for either the injuries sustained or for his underlying degenerative disc disease. He noted there were inconsistent signs in relation to straight leg raising.
173 From an orthopaedic point of view, Mr Dooley would expect the plaintiff to note difficulty with heavy physical activities or with activities that involved a lot of bending, lifting and twisting.
174 Mr Dooley thought the plaintiff would have difficulty carrying out work that involved a lot of heavy lifting or regular bending, lifting and twisting.
175 The plaintiff noted he had difficulty sitting for more than ten minutes. Mr Dooley believed that with an improvement in his fitness and stamina, the plaintiff’s ability to sit for periods of time would be prolonged.
Vocational evidence
176 An NES refresher assessment report and plan was provided by RehabCo in December 2012.
177 In order of priority, identified suitable employment options were community teacher, $1,152 a week, and static security guard, $831 a week.
Passport
178 It is not possible to ascertain from the summary of the plaintiff’s international travel from 2009 to 2014 how many times he travelled from Australia to Thailand. The summary detailed arrival and departures from a number of Asian countries.
179 In August 2009, the plaintiff travelled to Indonesia once. In 2010, he travelled to Thailand on three separate occasions in February, August and November.
180 In 2011, the plaintiff returned to Thailand on three separate occasions in April, August and November. In 2012, he returned to Thailand on three occasions in April, September and October.
181 In 2013, the plaintiff travelled to Cambodia in August and to Thailand on four separate occasions in April, June, August and December. In 2014, he travelled to Thailand on two occasions.
Overview
182 I accept the plaintiff suffered a compensable injury to his lumbar spine in the incident on the said date.
183 The defendant accepted the plaintiff’s claim for weekly payments and the plaintiff continues in receipt thereof.
184 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[34] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[34][2006] VSCA 171
185 In this case, there is no evidence of any pre-existing back complaint of any note.
186 Whilst Mr Dooley suggested a psychological reaction was influencing the plaintiff’s symptoms and Dr Marks thought there was some exaggeration on examination, the preponderance of medical evidence is that the plaintiff’s lumbar condition has a significant organic basis.
187 The consensus of medical opinion is that the plaintiff suffered aggravation of degenerative change at L4‑5 and L5‑S1 in the incident.
188 I am satisfied that the effects of this aggravation continue. I do not accept the plaintiff’s condition resolved in 2008 as Mr Jones opined.[35] Whilst Dr Marks thought it was difficult to prove one way or another that the incident was still playing a role in the plaintiff’s present back condition, it is clear from the general practitioner’s clinical notes that the plaintiff attended on a regular basis complaining of ongoing back pain throughout 2008 to early 2012, reporting difficulties with his driving duties.
[35]T56
189 I prefer the evidence of treating doctor, Dr Mobilia, who regularly saw the plaintiff, to that of Mr Jones, who examined the plaintiff on only one occasion in a medico-legal context. Dr Mobilia confirmed the plaintiff’s complaints had continued during that period and they had not resolved.[36]
[36]T69
190 The numerous references in Dr Mobilia’s notes to complaints of back pain have been referred to earlier in this judgment. Such complaints became more prolific at the end of 2010 and an MRI was then suggested. Following further attendances in 2011, an MRI scan was requested.
191 On 23 September 2011, it was noted back pain since returning to work had worsened. There was a specific note on 30 January 2012, a short time after the plaintiff had ceased work of “long discussion re worsening back”.
192 I accept that careful review of the attendances with Dr Mobilia shows the frequency of complaints increased towards the end of the plaintiff’s employment.[37]
[37]T66
193 I accept there was a continuum of treatment and complaints of pain from the injury and that that was in the context of permanent alterations in the plaintiff’s working environment.[38] I reject the submission that these events reported by the plaintiff were just “odd hiccups” of the nature of the incident injury.[39]
[38]T64
[39]T58
194 Accordingly, I also reject the submission on the defendant’s behalf that what had maintained the plaintiff’s problems to early 2012 were unrelated incidents or simply wear and tear and the normal aging process. [40]
[40]T58
Credit
195 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[41]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[41](2010) 31 VR 1 at paragraph [12]
196 I found the plaintiff to be a truthful and unsophisticated witness who appeared in obvious difficulty whilst giving evidence, having to stand and sit at various times, and often leaning forward, resting his hands on the witnessbox. His evidence in relation to his pain was forthright and unembellished.[42]
[42]T73
197 There was no surveillance film or any other evidence challenging the plaintiff’s description of his level of pain and restriction.
198 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[43] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain to doctors and the Court.
[43]Supra
199 Since the incident, the plaintiff has suffered constant back pain of varying intensity, worsened by activity. He also has pain, particularly down his left leg into his foot, and in the right leg just to below the knee.
200 The plaintiff has difficulty with any lifting, bending and prolonged postures.
201 The plaintiff continues under the care of his general practitioner, who prescribes Panadol Osteo, which the plaintiff takes six times a day, Celebrex twice a day, 75 milligrams of Lyrica twice a day, and other medications similar to valium.
202 The plaintiff has undergone physiotherapy and been referred to various specialists who have suggested conservative treatment, including pain management, which was not undertaken as it was held too far from the plaintiff’s home.
203 Whilst in earlier days the plaintiff took over-the-counter medication only because he was still driving at work, since he ceased work, his medication regime has been significant.
204 In Kelso v Tatiara Meat Company Pty Ltd,[44] Dodds-Streeton JA stated that where chronic pain was a prominent feature of the appellant’s case, “the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.”
[44](2007) 17 VR 592 at paragraph [199]
205 The plaintiff’s ability to do a range of recreational and social activities has been significantly affected by his back injury.
206 A major consequence of the plaintiff’s back injury has been its effect on his employment.
207 The plaintiff has never resumed unrestricted manual work since the incident. On his return to work until the time his employment was terminated in 2012, he was put on lighter fuel tanker driving duties rather than tallow work.
208 Prior to the incident, the plaintiff worked five eleven to fourteen hour shifts per week. Post-injury, that workload was reduced to four days, interspersed with maximum shifts of ten and a half. At times, the plaintiff took time off on annual leave when his back pain increased.
209 I accept that the plaintiff would have had problems continuing in even fuel driving duties had his employment not been terminated. He may have wanted to keep working as he clearly stated, but he became increasingly unable to do so because of worsening back pain.
210 I do not accept that functional factors came into play in 2012 and explain the plaintiff’s inability to work. In my view, the plaintiff had a strong work ethic and would have continued in the workforce had his back condition not worsened.
211 The consensus of medical opinion is that the plaintiff, a man with a history of only manual work, is no longer able to do such duties as a result of his back injury.
212 In my view, this is a serious consequence which satisfies the narrative test.
Loss of Earning Capacity
213 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
214 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.
215 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
216 “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.
217 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.
218 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 - Barwon Spinners Pty Ltd & Ors v Podolak.[45]
[45](supra) at paragraph [70]
219 I am therefore required to determine a “without injury” earnings figure.
220 It was ultimately submitted on the plaintiff’s behalf that a figure of $66,804 was an appropriate “without injury” earnings figure but it was suggested figures were not necessary as there was a total loss of income.[46]
[46]T72
221 Counsel for the defendant submitted $75,000 was the appropriate “without injury” earnings figure.[47]
[47]T62
222 In my view, the higher figure, that earned by the plaintiff in the last financial year before he ceased work, represents most fairly reflects his earning capacity had the injury not occurred.
223 I accept that the plaintiff does not have a capacity for suitable employment where he would earn in excess of 60 per cent of that amount.
224 Although he did not explain the change in certification from fitness for modified duties until June 2012 and thereafter no capacity for suitable employment, the latter is the current view of treating general practitioner, Dr Mobilia, who provides certification to this effect. Dr Mobilia was not cross-examined.
225 Treating neurosurgeon, Mr McMahon, shares this view, as do medico-legal examiners, orthopaedic surgeon, Mr O’Brien, and occupational physician, Dr Marks.
226 The plaintiff’s work experience has been in truck driving. He has spent the vast part of his employment driving large vehicles, in particular trucks and tankers. He held that career from a young age and enjoyed the work and social contact.
227 The plaintiff has no transferable skills. He has no qualifications or training in any other field. Not surprisingly, alternative jobs were not seriously suggested by counsel for the defendant.[48]
[48]T61
228 I do not accept with the plaintiff could work as a truck driver even within the restrictions suggested by Mr Dooley and Mr Kudelka.
229 As the plaintiff explained in that role, he would have to climb in and out of the trucks, climb over to secure loads and then drive for prolonged periods, often on uneven roads. He could not do this job on his present medication regime. If he did not take this medication, his pain would be too great to do the duties required.
230 The plaintiff is certified unfit for any duties and he cannot think of any other job he would be able to do.[49] He just feels there is nothing he can do at the moment as he has serious back pain.
[49]T51
231 This is not an unreasonable view in all the circumstances.
232 Taking into account all the evidence, I am satisfied that the plaintiff has suffered the requisite loss of earning capacity and this situation will continue permanently.
233 Whilst the plaintiff is hopeful there may be some improvement following treatment with Dr Todhunter, I am not satisfied that any such treatment, if undertaken, would change the situation as to the plaintiff’s loss of earning capacity to any significant degree.
234 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
235 In light of my findings as to the plaintiff’s impairment and his incapacity for employed, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
236 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, for example both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[50] and Advanced Wire & Cable Pty Ltd v Abdulle.[51]
[50][2009] VSC 454 at paragraph 147
[51][2009] VSCA 170
237 Accordingly, I grant the plaintiff leave to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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