Naiker v Chalmers Industries Pty Ltd
[2014] VCC 898
•18 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02757
| RONALD NAIKER | Plaintiff |
| v | |
| CHALMERS INDUSTRIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2014 | |
DATE OF JUDGMENT: | 18 June 2014 | |
CASE MAY BE CITED AS: | Naiker v Chalmers Industries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 898 | |
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 & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Ansett Australia Ltd v Taylor [2006] VSCA 171; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Acir v Frosster Pty Ltd [2009] VSC 454; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds QC with Mr N Dunstan | Slater & Gordon |
| For the Defendant | Mr D Seeman | Thomson Geer |
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 7 July 2010 (“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 forty 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 Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
15 The plaintiff relied upon three affidavits and gave viva voce evidence. He also relied on an affidavit from his former de facto partner, Tegan Paltridge, sworn 23 May 2014. 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 presently aged thirty six, having been born in August 1977 in Fiji. There, he completed primary school and only a month of secondary school. He was a very poor student and often truanted. He now has only basic reading and writing skills. He does not read the newspaper.[3]
[3]T17
17 In 1985, the plaintiff migrated to Australia aged seventeen. He then worked for Eatmore Poultry as a labourer for about five years. He was a forklift driver with TIK Group in Altona for about six months. He also worked at Haico Engineering for about a year and then for Pestex as a labourer for approximately four years.
18 The plaintiff denied he did invoicing or ordering whilst working at Pestex and Haico as his résumé set out. That document was compiled by his nephew, and the plaintiff could not remember telling him that he did those duties.[4]
[4]T18
19 The plaintiff agreed that his lack of English was not a hindrance to continuous work in Australia since coming from Fiji.[5]
[5]T20
20 The plaintiff agreed he had a sore back whilst working at Pestex in November 2006 and had a week off work, but then resumed heavy work. He could not remember having a back problem in 1999 or having a CT scan in 2000 or being told he had a disc problem at that time. He could recall injuring himself in March 2010 when a propeller part hit him on the back. He recovered well and finished that job and did not have any time off work.[6]
[6]T22
21 In 2007, the plaintiff commenced work with the defendant. He was initially a casual, then a permanent employee, until his employment was terminated in January 2012. He was employed to undertake labouring work and operate the forklift in the logistics area.
22 On the said date, the plaintiff was instructed to climb up onto a stack and use a blower to blow dust off a pile of insulation bales. Whilst blowing off the dust, the bales collapsed underneath him and he fell to the ground, a distance of about 2.5 metres. The bales then fell on top of him and struck his right arm, which he raised to protect himself (“the incident”).
23 Following the incident, the plaintiff was immediately aware of right shoulder, elbow, wrist, back, hip and groin pain and with the progression of time, he became aware of neck problems.
24 The plaintiff confirmed he has suffered groin pain from the incident date although his general practitioner first noted it in November 2010. The plaintiff did not fill in the Register of Injuries or his Claim Form so he could not explain why a groin injury was not mentioned.[7]
[7]T28
25 The plaintiff agreed that at the time of the incident the pain was in his hip and back.[8]
[8]T28
Subsequent medical treatment
26 The plaintiff saw Dr Navani. The plaintiff was on and off work until 23 August 2010, when Dr Navani put him off work altogether.
27 The plaintiff had a lumbar spine x ray in August 2010 followed by a CT scan later that month, which disclosed a large central and right sided disc prolapse at L5-S1 level and pinching on the right L5 nerve root.
28 Dr Navani subsequently referred the plaintiff for an MRI scan in September 2010. He was also referred to a neurosurgeon, Mr Smith, whom he initially saw on 25 November 2010, following the MRI scan.
29 By that time, the plaintiff was also suffering referred symptoms down through his right buttock into the leg with some pain in his right groin. He was using Panadeine Forte and Tramadol to try and obtain pain relief.
30 The plaintiff made an attempt to return to work in late 2010. As Dr Navani noted, in September 2010, the plaintiff was working four hours, three days per week.
31 As of November 2010, the plaintiff was struggling with pain and trying to manage light duties of four hours, three days a week. The hours were reduced to three hours in December 2010 and it was noted in that month, the plaintiff missed work as “back pain +++”.
32 The defendant had no light duties for the plaintiff. He just walked around and made sure there were no pallets in the aisles. He was allowed to have as many breaks as he wished. By the end of 2010, the plaintiff stopped work as he could not manage it as a result of his low back pain.[9]
[9]T49
33 Mr Smith recommended surgery, which the plaintiff undertook on 12 January 2011 in the form of a right L5-S1 microdiscectomy and rhizolysis procedure (“the back surgery”) in which the plaintiff understood a disc fragment was removed.
34 There was significant improvement in the referred symptoms in the plaintiff’s right leg following the back surgery but he continued to suffer back pain and also persisting right hip pain.
35 After the back surgery, the foot pain has totally gone but not in the leg. The plaintiff still has leg and heel pain and the pain goes from his back in a shooting fashion and is constant.[10] There was improvement in the groin pain, not his right leg. The pain is always there. The pain comes from the lower back and it “sort of goes through his body”.[11]
[10]T22
[11]T25
36 The plaintiff was referred for a bone scan which was performed in June 2011 and also an MRI scan of his lumbar spine and right hip.
37 Because of persisting right hip symptoms, Mr Smith referred the plaintiff to an orthopaedic surgeon, Mr Stoney, whom he consulted on 8 August 2011 and an injection into the right hip joint was performed later that month. The injection provided only limited relief from right hip symptoms and Mr Stoney recommended arthroscopic surgery.
38 A CT scan of the right hip on 30 October 2011 showed a deformity in the hip joint.
39 The plaintiff subsequently underwent arthroscopic hip surgery in May 2012 (“the hip surgery”), following which there was an improvement in the level of symptoms, particularly in his groin, but he still had persisting hip problems. However, Mr Stoney told him he would have to put up with them and there was nothing further that could be done.
40 In addition, the plaintiff had problems with his right shoulder, elbow and wrist as a result of the incident. He was diagnosed with a ganglion in the wrist and right tennis elbow. An MRI scan of the shoulder showed some synovitis in the acromioclavicular joint and also evidence of subacromial bursitis.
41 The plaintiff consulted a rheumatologist, Dr Stockman, in relation to those injuries and he gave him two injections in his right shoulder in 2012 which provided limited, but not lasting relief. The right wrist was then continuing to cause more problems than previously and the ganglion was gradually growing but Dr Stockman did not suggest specialist referral.
42 Following the back surgery, the plaintiff did not return to work with the defendant and his employment was terminated in late January 2012. The plaintiff was then in receipt of weekly payments of $550 per week.
43 Because of his limited linguistic skills and limited vocational skills, in addition to his physical impairment for further labouring work, the plaintiff had significant concerns about his ability to obtain further employment.
44 As at January 2013, the plaintiff suffered constant but variable levels of pain. He continued to suffer right hip pain and was concerned in the longer term that this pain and his back pain would continue.
45 The plaintiff’s right groin pain had improved following the hip surgery. His shoulder remained sore despite the injections. His elbow was sore, as was his wrist with the developing ganglion.
46 The plaintiff’s ability to sit or stand for extended periods was restricted. His gait had altered quite a bit as a result of his injuries and he tended to shuffle along rather than walk smoothly. He had to take care when undertaking any type of physical activity not to over exert himself or he paid for it later.
47 The plaintiff found his sleep was disrupted and his libido was considerably diminished and his social activities were restricted. He had difficulty engaging in his children’s activities as easily as he otherwise would. He found the pain and disability caused him to be irritable and more easily angered and that affected the relationship with his children. The plaintiff spent most of his time at home, whiling away the time, because of his restrictions by his injuries.
48 The plaintiff was then prescribed Panadeine Forte and Tramadol, taking about six a day. He took two Temaz at night to help with sleep and at times, he also took Nurofen Plus and Panadol. He was then having weekly physiotherapy with Mr Jones.
49 In his recent affidavit sworn on 13 March 2014, the plaintiff confirmed he continues to suffer ongoing, constant back pain. Nightly, he also has pain travelling down his right buttock into the back of his leg.
50 The back surgery has been successful in resolving the numbness in his right foot but his back, right buttock and leg pain has remained without improvement.
51 The plaintiff continues to require pain-relieving medication. He takes it for his back mainly and also his hip/groin area. Dr Navani prescribes Panadeine Forte and Tramal which the plaintiff takes two tablets, three times a day. In 2013, he was also prescribed OxyContin but he stopped taking it and instead tried to top up the other analgesics with Nurofen Plus or Panadol.
52 At night, the plaintiff takes Temaz to sleep. His back and right buttock pain wakes him after about three’ hours sleep, even though he takes the medication. He generally then gets up for about an hour and has a drink before eventually trying to get back to sleep. Sleep problems are due to back pain mainly.[12]
[12]T51
53 The plaintiff explained he did not take any tablets on the day of the hearing because he did not want to be sleepy or drowsy. He is scared to take a lot of medication.[13] He takes a little bit in the morning before he takes his children to school and then takes more when he gets home.
[13]T42
54 The plaintiff continues to suffer constant, but variable, right groin pain. It is like a sudden pain, like being stuck with a needle.
55 The plaintiff also continues to suffer right shoulder, elbow and wrist pain, which is present most of the time and when it is severe, it causes him to lose strength and drop objects. Although the pain is variable, over the last twelve months it has basically remained the same.
56 The plaintiff’s right shoulder is still sore. He has problems moving it out to the side but no problems moving it straight out in front. It is really once he raises his arm above shoulder height that the pain starts to happen.[14] He puts his hand in his pocket to take the pressure off his shoulder.[15]
[14]T31
[15]T31
57 The plaintiff agreed the pain effectively travels from the shoulder down the right arm and he effectively has pain in the entire arm, which has always been there.[16]
[16]T31
58 Until late 2012, the plaintiff received funding for physiotherapy which he obtained from Mr Jones and was beneficially controlling his pain level. The plaintiff cannot afford to pay for that treatment himself and consequently has not been able to resume it. His doctor wants him to have this treatment and he would still be having it if it was funded.
59 The plaintiff’s children are aged six. He is separated from his former partner but they live close together. She works full time and he tries to help her with taking the children to school and picking them up at the local Brookside Primary School.
60 The plaintiff lives with his sister, who is aged thirty nine. His mother and other sister live in a house nearby.
61 During the day when his children are at school, the plaintiff sometimes does light local shopping. He avoids the larger shopping which is done by his sister, as carrying large items and heavy groceries causes his back pain to worsen.
62 Most of the time the plaintiff rests during the day. After school and most weekends, he goes to his former partner’s house and watches his children’s activities.
63 The plaintiff has a sleep in the middle of the afternoon for two hours and then collects his children from school.[17] At times, he can manage to take the children to the park. He tries to avoid pushing them on the swings but he agreed he could do so.
[17]T45
64 Since they were very young, the plaintiff has suffered back pain and the children have now learned to avoid asking him to play vigorous games. This upsets the plaintiff greatly and affects his self esteem as he cannot be a normal father, running around playing ball games and wrestling with his children.
65 The plaintiff’s back injury greatly restricts his participation in normal household activities and his family generally does the cooking. He enjoyed a little bit of cooking.[18]
[18]T36
66 The plaintiff tries to help rinsing the dishes. If he stands at the sink for too long, his back pain worsens. He takes out light rubbish to the nature strip. He tries to avoid heavier domestic tasks such as vacuuming or cleaning, which always causes him to suffer severe back pain.
67 On the weekends, the plaintiff occasionally goes with a friend to visit other friends in Ballan and Anakie. Sometimes the plaintiff drives and occasionally his friend takes him. If the plaintiff was fit and well, he would do things to help out on his friend’s five acre property, such as collecting firewood, fencing and helping with the animals. Since suffering his injury, the plaintiff generally just walks around or has a coffee while others do the chores. At times, he can manage to hold a horse but he avoids more physical tasks. He had given horse riding “a crack” but it just killed him.
68 Even the 45-minute drive to Ballan and Anakie causes the plaintiff’s back pain to worsen and he generally pulls over and rests at a service station on the way. When he arrives, he tries to rest until his back pain has eased a little.
69 Since the termination of his employment, the plaintiff has been unable to find any work.
70 In 2012, WorkCover accepted liability for the cost of some literacy courses which the plaintiff undertook. Since funding had terminated, the plaintiff had been unable to do any further retraining.
71 The plaintiff continues to look in the newspapers on a weekly basis and asks his friends if they know of any jobs he can do. With his level of pain and poor reading and writing skills, there is no job of which he is aware that he has the capacity to perform.
72 The plaintiff has great difficulty sitting or standing over longer periods. After about 45 minutes of sitting, his back pain becomes more intense and he wriggles around to try and get a little more comfortable. Similarly, after about 30 minutes standing, his back pain becomes severe.
73 After about two or three hours, the plaintiff has to take tablets and rest. No matter what he does, he “just has to pull up”.[19] He could not do work as a car park attendant, with the sitting down and reaching out involved.[20]
[19]T41
[20]T41
74 The plaintiff did not think he could work four hours at a time at a bench.[21] He could not even do it if he could change his posture. He cannot do things like the dishes so he would not be able to do a bench job.[22]
[21]T43
[22]T52
75 Standing or sitting causes pain in the plaintiff’s back.[23] He needs to rest because of his back pain. He cannot sit in the one spot for very long. His driving tolerance is about fifteen minutes and he has to use his left foot to use the brake and the accelerator.[24] Then, the pain comes on in his calf muscle, leg and back and it stiffens and he twists to get comfortable.
[23]T45
[24]T53
76 If he did not have his shoulder problem, “possibly” the plaintiff would be able to work four or five hours, he had not tried.[25]
[25]T45
77 The plaintiff has attempted to find work at a place where signs were printed but he was not offered a job. He had also spoken to a neighbour who was tidying up and recycling hardwood to see if he had any work.
Surveillance
78 In surveillance film taken on 3 January 2011 before the back surgery, the plaintiff was shown swinging his small child on a swing.
79 There was not much effort swinging his child once the swing got going and it kept going backwards and forwards. He stopped the swing so his son could get off. He could not just leave his child there. He could not use his left hand because there was an adjoining swing.[26]
[26]T49
80 The plaintiff confirmed in re-examination he had limped in the film – that was a typical day.[27]
[27]T51
Summary of income taxation returns
Financial Year Ending Taxable Income 30 June 2006 $35,651 30 June 2007 $33,858 30 June 2008 $37,761 30 June 2009 $44,860 30 June 2010 $46,750 30 June 2011 $39,858 30 June 2012 $35,433 30 June 2013 $21,266
Lay evidence
81 The plaintiff’s former partner, Tegan Paltridge, swore an affidavit on 23 May 2014.
82 The plaintiff is the father of her twin boys, who are now aged six. Her relationship with the plaintiff is on and off. She would describe it more as friendship and they see each other regularly for the children.
83 Prior to the incident, the plaintiff was happy, confident, outgoing, free spirited and active. The children were then three and the plaintiff would regularly take them to the park, playing ball sports, running around with them and generally having fun.
84 Ms Paltridge is aware the plaintiff suffered injuries to his hip, right shoulder, right elbow, right wrist and lower back in the incident.
85 Since that time, they have tried their best to see each other daily, if not very regularly. The plaintiff is deteriorating with pain. He complains very regularly, if not daily, about pain, especially to his lower back and right hip. She probes him as to how bad his pain is and he often tells her of shooting pain down his right leg. When he has significant pain, the plaintiff becomes angry, frustrated and upset and his patience wears very thin.
86 The plaintiff takes significant pain medication and she is often required to obtain it for him when she can. Further, she sometimes provides him with medication when he needs it. The plaintiff often sleeps throughout the day and has regularly stayed at her house throughout the day to sleep, which he indicates helps with his pain management.
87 Ms Paltridge lives on a large property with animals, including horses, chickens and goats. Prior to the incident, the plaintiff dealt with maintenance, feeding, moving and general care of those animals. Presently, he struggles to perform the same tasks. He tries his best to hold the horses and indeed feed them when he can for the benefit of the children who sometimes ride the horses.
88 Since the incident, the plaintiff has not participated as much with the children’s activities. He continued to try and take them to the park; however, he struggled in that regard. He is unable to run around and play the same ball sports he once did. The children are now aware of the plaintiff’s injuries and avoid playing or undertaking physical activities with him which upsets him.
89 The plaintiff’s literacy is poor, struggling with reading and writing. She often has to help him read letters, whether it be general mail or solicitors’ letters. He struggles with medical appointments and filling out registration forms. She has often completed those documents for him. In situations where she has been unable to provide assistance, the plaintiff has rung her and she has done her best to assist him over the phone and other times, she comes over and tries to help him.
Claim documentation
90 The plaintiff submitted a Claim Form in July 2010 in which he described right wrist, elbow, back strain, “standing on insulation packs, cleaning packs, moved” and he “slipped down”. Packs were falling down so he put up his right hand to protect himself.
91 A Register of Injuries Form was signed by Nick Tenni on 9 July 2010. The form was completed by Clare Johnson, safety and wellbeing officer. She noted the plaintiff had sprained his right arm, injuring his right hand, elbow and shoulder, wrist and “right […](sic)”, cleaning, blowing dust off the packs.
Treaters
92 The plaintiff was seen by Dr C-Ong, of Health for Industry Laverton on 9 July 2010. Dr C-Ong reported there was an injury to the right elbow and wrist, lower back and hip. A contusion and sprain type injury was diagnosed.
93 On 19 July 2010, the plaintiff reported his pain had gone and he felt well enough for normal duties, which he did on 19 July 2010 but then there was a subsequent flare up and increasing complaints of right elbow problems. In the meantime, the plaintiff had also complained of some hip pain.
94 Dr C-Ong suspected it may be a possibility the falling bales aggravated a lower back sprain or disc injury. The plaintiff failed to attend after a CT scan in September 2010.
95 Dr Navani most recently reported in September 2013.
96 The plaintiff first attended him at Sunshine City Medical Centre on 23 August 2010, complaining of right elbow pain, severe lower back pain, right groin, right hip and right leg pain. The plaintiff then advised of the incident and his injury.
97 Dr Navani noted ever since, the plaintiff had struggled with right elbow, lower back, right hip, right groin, right leg pain and numbness of the right big toe and those symptoms had in fact gradually worsened.
98 Dr Navani noted the investigations undertaken and specialist referral leading to back and right hip surgery.
99 Dr Navani also noted the plaintiff had continued to complain of right shoulder, right elbow and right wrist pain and he had been regularly followed by the rheumatologist, Dr Stockman, with further investigations undertaken.
100 As of 10 September 2013, Dr Navani noted unfortunately, the plaintiff remained in chronic pain with the whole of the right side of the body involved; namely, right shoulder, elbow, wrist and ganglion. The plaintiff’s right hip and groin remained painful and he had developed a limp in his gait to favour his right leg. He remained in chronic pain and on strong medication.
101 Dr Navani noted, surprisingly, the plaintiff had quite a stoic approach despite his significant pain and functional limitations.
102 Dr Navani diagnosed right shoulder subacromial bursitis, right lateral epicondylitis, right wrist ganglion and tenosynovitis, right hip synovitis and debrided labral tear, post-operative lumbar spine surgery with persistent back pain and Chronic Pain Syndrome. He thought the plaintiff’s significant medical condition remained entirely work related.
103 Dr Navani noted the plaintiff was struggling to manage his basic daily living activities and remained in chronic pain and on strong medication. He had no work capacity and he believed the plaintiff needed to be supported with ongoing weekly payments.
104 Mr Paul Smith, neurosurgeon, first saw the plaintiff in November 2010. The plaintiff then reported right elbow pain, right buttock, lumbar and hamstring region pain and also pain radiating to the right groin and testicle immediately after the injury.
105 Six weeks after the January 2011 back surgery, the right leg pain remained resolved and the plaintiff detected an improvement in strength and some improvement in sensation. His right groin pain seemed to be ongoing. However, Mr Smith never really thought that was related to the L5-S1 discs, so therefore that was not surprising.
106 Mr Smith felt the plaintiff had some evidence of hip irritability on examination in May 2011 and he ordered a repeat MRI scan of the spine and hip to investigate the matter of right groin pain.
107 Overall, Mr Smith treated the plaintiff for a right S1 radiculopathy secondary to L5-S1 disc prolapse due to the incident. He noted at all times the plaintiff had been a straightforward historian. The right S1 radiculopathy caused the plaintiff significant hardship but he did respond well to the back surgery and had resolution of his right S1 radiculopathy with perhaps only very subtle residual sensory disturbance which would not impair his capacity to return to normal function.
108 Mr Smith thought the resolved S1 radiculopathy and current timing post surgery should not prevent the plaintiff returning to work. However, he was troubled with very significant right groin pain with unknown cause. The plaintiff was having further investigations in this regard. This pain at the level suffered by the plaintiff would prevent him from effectively engaging in manual work. This pain and the previous pain the plaintiff suffered would also greatly impair his ability to engage in recreational activities.
109 Mr Smith thought the prognosis for the S1 radiculopathy was excellent. The prognosis for other injuries was less certain, as the cause of the right groin pain was really not determined (noting in his earlier report the groin pain came on at the time of the incident and was therefore also work related) and may well be outside his area of expertise.
110 There were a number of reports from the physiotherapist at Sunshine Medical Clinic where the plaintiff attended between September 2010 and October 2012.
111 Mr Stoney, orthopaedic surgeon, first saw the plaintiff in August 2011, following back surgery of January that year.
112 Mr Stoney noted the plaintiff complained of right groin and thigh pain since the incident. The back surgery seemed to help some of the plaintiff’s pain but he was left with residual right groin pain.
113 Mr Stoney thought that pain could be coming from the plaintiff’s hip joint but the investigations undertaken were not impressive and his examination, although showing some features of hip disease, was not strongly positive.
114 Mr Stoney, accordingly, sent the plaintiff for a guided local anaesthetic and cortisone injection which did not make a great deal of difference. Thereafter, the plaintiff’s hip was still irritable and Mr Stoney sought approval for arthroscopic surgery, during which he found a fair bit of synovitis in the hip and a small labral tear.
115 Post review, the plaintiff made a good recovery and told Mr Stoney in October 2012 his groin pain was at least 50 per cent better but he still had some irritability and Mr Stoney thought that would gradually settle with time.
116 Dr Stockman, rheumatologist, initially saw the plaintiff in September 2011 for management of his persistent right elbow pain. Investigations were arranged of the elbow and right shoulder.
117 Dr Stockman referred the plaintiff for ultrasound-guided steroid injection into the right subacromial bursa and sent him for further radiology. Injections were carried out in March 2012.
118 As of August 2012, Dr Stockman anticipated the injections into the right shoulder would produce significant improvement, noting the plaintiff had not turned up for reassessment. He would have anticipated return to light work about a month after the injection. Relevant restrictions were avoiding elevation of the right arm above the shoulder level and avoiding grabbing or lifting objects of more than 4 kilograms.
119 Considering he had not seen the plaintiff since March 2102, Dr Stockman could not say whether incapacity would be indefinite. He noted, if the plaintiff did not obtain significant response to the injections or the response was short-lived, surgery may have to be considered, given his young age.
Investigations
120 Dr Navani organised a CT scan of the plaintiff’s lumbosacral spine on 24 August 2010. It was reported there was large central and right-sided disc prolapse at the lumbosacral junction, impinging upon the right L5 nerve root.
121 Dr Navani organised an MRI scan of the plaintiff’s lumbar spine and sacroiliac joints in September 2010. It was reported there was a moderate sized right paracentral L5 disc protrusion impinging on the right S1 nerve root.
122 Mr Smith arranged an MRI scan of the plaintiff’s spine and right hip in June 2011.
123 It was reported there was L5-S1 asymmetrical broadbased disc bulge, right greater than left, with mild compression of the traversing right S1 nerve root and subarticular recess. There was a small right paracentral annular fissure. No further nerve root compression was demonstrated and there was no hip joint pathology.
124 Mr Smith organised a bone scan on 24 July 2011. It was reported that scan suggested some ongoing soft tissue activity – inflammatory change – in the surgical site at L5-S1, with only low grade associated bony uptake, the latter being consistent with post-operative change.
125 In addition, there was increased uptake in the right L5-S1 facet articulation in keeping with right facet arthropathy and in the right hip, in keeping with right hip arthritis. No other significant abnormalities were noted to explain the findings.
126 There was a CT scan of the right hip organised by Mr Stoney in October 2011. It was reported there were changes of cam-type impingement.
127 There was an MRI scan of the right shoulder, right elbow and right wrist organised by Dr Stockman in October 2011. In terms of the right shoulder, it was reported changes described in the AC joint may be post traumatic or inflammatory in nature. There was no significant pathology seen in the elbow. It was reported that the distal radius and ulnar and distal radio ulnar joint were unremarkable in appearance. The proximal and distal carpal row were normal, as were the scapholunate and triquetrolunate ligaments.
128 Mr Stoney organised an arthroscopy of the pelvis and right hip in May 2012. It was reported there was satisfactory alignment of the pelvic rim. Both hip joints were satisfactorily enlocated. There appeared to be a slight flattening in the region of the femoral head neck junction superiorly, most likely due to recent surgery.
Medico-legal evidence
129 The plaintiff was examined by Mr Khan, orthopaedic surgeon, in December 2011.
130 On examination, there was satisfactory range of movement of the right elbow and mild tenderness. There was limited range of movement of the thoracolumbar spine. The plaintiff had evidence of irritability and impingement in the right shoulder on abduction and internal rotation.
131 Mr Khan thought the plaintiff had been left with significant residual after effects of the back injury and considered that the plaintiff was presently considerably disabled by the residual after effects of it. He thought the plaintiff had sustained a soft tissue injury to the right hip and it might be reasonable to see a specialist and, if necessary, undergo an arthroscopy.
132 Mr Khan thought the condition of the right elbow had stabilised and the plaintiff was not fit to do any heavy work requiring pushing, pulling and heavy lifting with his right arm. He noted the plaintiff had developed localised residual swelling over the radial aspect of the wrist. That condition had substantially stabilised and he thought the plaintiff was not fit for heavy work involving the right upper limb.
133 Mr Khan noted the plaintiff had been having multifocal symptoms following these injuries. He thought there was an element of non organic or psychological factors affecting the plaintiff’s presentation and psychiatric opinion would be appropriate. He considered the plaintiff was not exaggerating his symptoms and was stating them in a fairly straightforward manner.
134 Mr Khan thought the plaintiff did not have a realistic capacity for pre-injury employment in relation to the injuries, taking into account each of them, such as lower back and right elbow.
135 With reference to his back, the plaintiff could not sit or stand for long periods or walk or run. He had difficulty climbing stairs or lifting heavy weights and thus did not have a capacity for suitable employment.
136 Mr Khan thought the plaintiff would not be able to cope with normal hours of suitable employment with the physical aspects of his injury, as he was having a fair amount of pain and required additional painkillers regularly. He thought it was not possible to measure limitations of work in hours. He thought the plaintiff still required seeing his hip specialist, as he may need further treatment.
137 Dr Albert Kaplan, psychiatrist, examined the plaintiff in July 2012, diagnosing an Adjustment Disorder with Mixed Anxiety and Depressed Mood directly related to his chronic pain.
138 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on behalf of CGU initially in February 2012, and more recently in April 2013.
139 The plaintiff told Mr O’Brien of the incident and experiencing quite severe pain on his right side, affected by his back and right groin region.
140 Following back surgery, the plaintiff said there was some improvement in the severity of pain; however, he reported continuing back pain radiating into the right leg.
141 As at the first examination, the plaintiff described constant pain in his low back, radiating to the right buttock and posterior area of the right thigh, the knee, and sometimes to the foot. He also reported pain in his shoulder and pain over the lateral aspect of the right elbow.
142 The plaintiff described some tenderness to palpation in the right buttock and there was restricted thoracolumbar spine movement. Mr O’Brien noted signs in relation to the lumbar spine were subjective, with restricted movement, but without any current signs of nerve root compromise. Mr O’Brien did not have any investigations available to confirm pathology, although he would only presume the plaintiff did undergo surgery for a frank disc herniation, which thus suggested the presence of post-operative back and leg pain of a chronic nature. There was also demonstrated some restriction, particularly flexion of the right hip as being associated with described acetabular impingement on the CT scan of the hip.
143 Mr O’Brien thought the plaintiff was totally incapacitated and not capable of returning to pre-injury work or even light duties. It appeared the plaintiff presented with indications for the proposed injections in the shoulder and right hip arthroscopy.
144 On re-examination, the plaintiff described constant pain in the right side of his neck, extending to the right shoulder, into the upper arm and down the arm to the elbow and into the hand. He also reported neck pain.
145 In addition, the plaintiff reported he continued to experience constant pain, which he localised as extending over the posterior aspect of the sacrum, extending distally to the region of the anus and medial side of the perineum and extending down the medial aspect of the right thigh and posterior aspect of the calf to the heel.
146 Mr O’Brien noted on examination, the plaintiff presented with an unusual limp which involved abducting the right leg, but he could weight bear. The thoracolumbar spine was straight and there was moderate reaction to palpation over the sacral area, and some restriction of movement.
147 Mr O’Brien noted the plaintiff again presented with a significant distribution of pain, with pain described as extending from the right side of the neck, down the length of the right arm to the hand, in addition to back and right leg pain, with pain localised to the right groin with some residual testicular pain.
148 Whilst there was some persistent pathology, mainly in the acromioclavicular joint, Mr O’Brien could generally find no signs of significant pathology associated with the remainder of the right upper limb.
149 Mr O’Brien commented that there now does not appear to be any significant change in relation to physical signs in the lumbar spine, where there is some restriction of movement but not positive evidence of nerve root compromise or radiculopathy. Thus, he would conclude that the evidence indicated the presence of chronic, non-specific post-operative back and leg pain. He thought the plaintiff also continued to demonstrate chronic non-specific hip pain.
150 Mr O’Brien thought there were definite signs which suggested the overall clinical picture was affected by psychosocial factors and thus, taking the overall clinical presentation, he suggested the plaintiff now presented with a Chronic Pain Syndrome.
151 Mr O’Brien considered there was no possibility of the plaintiff returning to his pre-injury work. He thought the extensive distribution of pain with accompanying signs would indicate the plaintiff was totally incapacitated and not capable of undertaking any form of suitable employment. He had no little doubt the plaintiff was now significantly limited in general, social, domestic and recreational activities and that would be permanent.
152 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in January 2014.
153 The plaintiff then complained of neck ache; discomfort and intermittent pain; low back pain and discomfort radiating into the right leg; problems with prolonged postures; ache, discomfort and pain in the right hip; and problems with anxiety and depression.
154 Mr Miller noted the plaintiff complained of no other specific orthopaedic symptomatology.
155 On examination, there was diffuse tenderness of the cervical spine and right shoulder as was the case with right elbow, right wrist.
156 There was no deformity of the lumbar spine. There was diffuse tenderness but no muscle spasm, and straight leg raising on the right was positive at 40 degrees.
157 Examination of the right hip revealed Trendelenburg’s test was weakly positive and there was minor irritability during hip movement. There was one centimetre muscle wasting of the calf and there was a diminished right ankle jerk.
158 Mr Miller noted the plaintiff had suffered a musculoligamentous strain to the cervical spine with no evidence of radiculopathy. He reported diffuse and severe symptomatology in the right upper extremity which Mr Miller thought was possibly a mild form of right shoulder capsulitis and right tennis elbow but thought it more likely the plaintiff had developed a Chronic Pain Syndrome affecting the right upper extremity. He thought the plaintiff would have significant ongoing symptoms due to the associated development of that syndrome.
159 Mr Miller believed the prognosis for the right upper extremity itself from an organically defined pathology was good.
160 Mr Miller noted the plaintiff injured his lumbar spine with development of L5‑S1 disc injury. He had undergone discectomy for radiculopathy with a significant improvement in right lower extremity symptoms. Those symptoms persisted and Mr Miller believed the prognosis for the lumbar spine was only fair.
161 Mr Miller noted the plaintiff suffered an injury to the right hip with development of impingement syndrome, following which he underwent arthroscopy and resection of a cam lesion. Mr Miller noted the plaintiff had ongoing right hip symptoms which were coming predominantly from the lumbar spine and he believed the prognosis for the right hip itself was good. He noted the plaintiff’s mental state required separate assessment.
162 In terms of the future, Mr Miller thought the plaintiff was at an increased risk of developing arthritis in the hip but he was unlikely to require major intervention.
163 Mr Miller noted the capacity for work was a difficult and complex issue in this case. In terms of the lumbar spine and right hip, he thought the plaintiff would not be able to undertake work involving repetitive bending, lifting weights more than 5 kilograms, and would have a requirement to shift his posture regularly.
164 In terms of the right upper extremity, the plaintiff would have difficulty with repetitive right arm action, using the right arm in the above shoulder position or lifting more than 2 kilograms.
165 Given Mr Miller’s understanding of the plaintiff’s education and work experience, he thought a return to work would be highly problematic in this case. He thought the injuries had substantially stabilised.
Vocational evidence
166 Mr Paul Hartley, occupational rehabilitation consultant, from The Occupational Rehabilitation Group, prepared a vocational assessment dated 10 March 2014 following interview of the plaintiff on 16 December 2013.
167 It was noted during interview, the plaintiff had to get up and moved about very frequently and changed his position. He was observed to have an antalgic gait.
168 Mr Hartley noted that the plaintiff had negligible skills to bring to any alternative job designation. His medical opinion was that the plaintiff was unable to return to pre-injury employment which was very physically demanding.
169 It was noted the plaintiff was a man who had relied on his physical capacities and ability to learn on the job, rather than gain employment by virtue of education, literacy or any other particular skill set.
170 Mr Hartley thought, with his physical capacities greatly compromised as a result of his work injury, the plaintiff had no skills that would directly transfer into a new job of work.
171 Mr Hartley noted that Nabenet had suggested suitable vocational options; namely, call centre worker, customer service officer, product assembler, packer process worker, and production worker assembler.
172 Mr Hartley noted that Dr Baynes and Mr Blyth of Healthe Work had discounted jobs one and two given the plaintiff’s poor literacy, numeracy and lack of computer skills, and Mr Hartley agreed that was appropriate.
173 Mr Hartley, however, disagreed with Mr Blythe, and considered the vocational options of product assembler and hand packer, even in the light described, were not viable or suitable vocational options for the plaintiff.
Comparable earnings
174 In the 2011-2012 financial year, a comparable employee, Shaun Ward, earned $64,467.
The Defendant’s medical evidence
Medico-legal evidence
175 Mr Simm, orthopaedic surgeon, examined the plaintiff on 20 November 2013. He was provided with a large number of medical reports and investigations, including an MRI scan of the lumbar spine dated 24 June 2011.
176 On examination, the plaintiff described constant pain over the right shoulder blade, the lateral side of the right elbow, extending from the elbow down the front and back of the forearm to the wrist and hand. There was also localised wrist pain and limited movement of the right shoulder.
177 The plaintiff had constant pain in the lumbar region of the lower back from day one which was at times extremely severe, radiating to the buttocks, mostly on the right side. There was some pain in the right testicle but that had improved since the hip arthroscopy and there was pain in the right iliac fossa and right groin.
178 The plaintiff told Mr Simm overall, his pain was usually 4 to 5 out of 10 but there were days when it got to 8 out of 10, or even higher.
179 On examination of the lumbar spine, there was quite marked restriction of movement. There was strongly positive Waddell’s vertex compression and simulated pelvic rotation signs, and the plaintiff was sensitive to touch in the lower back. There was no sign of radiculopathy in the lower limbs.
180 There was a tendency to collapsing weakness but no focal weakness and the plaintiff had no sensory changes to pinprick. He tended to stand with his right hip slightly flexed and knees slightly flexed. When he moved the right leg, he reached for his groin and seemed to experience severe pain.
181 Mr Simm noted it was very difficult to evaluate the right hip joint because of quite an extreme pain response.
182 Right shoulder movements were globally restricted and were associated with non-specific severe pain response. Movements of the right elbow were normal but were associated with pain, particularly over the lateral side of the joint. Inspection of the right wrist was essentially normal and on formal examination, there was a tendency to present restricted movement. There was symmetry of no anatomical or pathological consequence. Examination of the upper limbs was normal.
183 Mr Simm did not comment on the 2011 MRI scan of the lumbar spine in his report.
184 Mr Simm thought the plaintiff had a significant right L5-S1 lumbar disc protrusion with right S1 irritation. He causally linked the incident to the plaintiff’s lumbar condition.
185 Mr Simm could not establish the diagnosis of the physical condition of the right shoulder and thought the clinical findings were non-specific and consistent with a Pain Syndrome.
186 There were apparently some features of lateral epicondylitis initially after the injury but Mr Simm noted the MRI scan of the right elbow was normal and did not confirm that diagnosis.
187 There was right wrist pain following the incident and Mr Simm noted the plaintiff currently presented with non-specific right wrist pain and full range of movement with distraction.
188 Mr Simm was not able to establish the diagnosis of the physical injury or other condition of the right hip. He noted the most important fact regarding the hip was that the diagnosis of femoroacetabular impingement was addressed arthroscopically with no improvement in the right groin or right hip symptoms. There was reported improvement in the scrotal testicular pain and tenderness which could not be reasonably related to having a hip arthroscopy.
189 Mr Simm noted the plaintiff had ongoing severe right hip pain and apparent restriction of hip movement but there were non organic features and he believed the right hip and groin pain was probably referred from the lumbar disc pathology but it was now part of the plaintiff’s multifocal chronic pain illness.
190 Mr Simm thought the plaintiff had an entrenched pattern of pain which would persist and prove resistant to treatment. The only explanation Mr Simm could put forward for the right groin pain, other than the fact it might be part of the plaintiff’s pain illness, was that it was referred pain from the lumbar spine.
191 Mr Simm commented it was essentially impossible to advise on the plaintiff’s physical capacity, noting his clinical presentation was that of an extreme multifocal pain illness behaviour with positive Waddell’s signs and almost constant abnormal pain and illness behaviour.
192 Mr Simm noted, considering the plaintiff had had surgically treated lumbar disc protrusion, he may be unfit for his pre-injury duties or alternatively, physically-based employment. He thought the plaintiff would probably need some flexibility with sitting and standing and that objects should be handled between knee and chest height, and he should be confined to handling light objects.
193 Mr Simm considered the plaintiff had a permanent incapacity for heavy manual work, or work which involved prolonged driving of a forklift or similar device over rough terrain or over rough surfaces.
194 Mr Simm thought the plaintiff was capable of working as a product assembler. He noted the plaintiff’s sitting and standing tolerances when providing his history were surprisingly good, considering the marked overt pain behaviour he presented almost continuously during the medical examination. In his view, the plaintiff was also capable of working as a packer process worker, light bench work.
195 Mr Simm was subsequently provided with surveillance DVDs, the plaintiff’s affidavit of March 2013, Mr Jones’ report of August 2013, the report of Dr Navani dated August 2013, and Mr Stoney’s report of September 2013.
196 Mr Simm addressed the film in terms of the hip pathology, noting for a very limited period of time there may have been a minimal antalgic component of the gait, which could be due to a number of factors including mild hip pathology.
197 Mr Simm commented the general level of activity and movements of the plaintiff on film was in contrast to Mr Simm’s description of his clinical presentation where the plaintiff displayed frequent overt and quite marked pain behaviour which included standing for much of the interview, groaning from time to time and sudden grimacing and complaining of pain. He noted the plaintiff walked with quite a marked non organic gait abnormality when physically examined.
198 Mr Simm thought all this would suggest, on formal examination, there was considerable elaboration of physical signs which would support his diagnosis of a Chronic Pain Syndrome.
199 Mr Simm thought the level of activity on the film and the duration of time the plaintiff was on his feet and walking whilst filmed, would suggest he could do bench-based employment, particularly if he was able to sit and stand during the day. Mr Simm’s observations on the film did not lead him to alter the opinion expressed in his original report, but rather, consolidated the opinion he had previously expressed.
200 Dr Michael Baynes, occupational physician, examined the plaintiff in May 2013.
201 The plaintiff reported having pain mainly affecting the right side of his body, but more recently he had reported some left buttock pain. He advised his lower back pain was the worst. He continued to have anterior groin pain radiating to the scrotum.
202 The plaintiff had continuous pain in the right shoulder radiating to the base of the neck and also down the arm into the middle finger. He had continuous pain over the lateral aspect of the right elbow radiating into the extensor muscle. He had pain over the dorsum of the wrist and decreased strength.
203 The plaintiff advised standing was limited to 30 minutes and sitting 40 minutes. He could walk for around 40 to 50 minutes but had some difficulty on steep hills. He found it difficult to drive and that was limited to 15 to 30 minutes and often he would use his left foot to press the accelerator.
204 Dr Baynes noted a normal range of cervical movement; pain on some movements of the right shoulder and tenderness; a normal range of right elbow movement; pain over the lateral aspect of the elbow; the tests for lateral epicondylitis were positive; reduced flexion with pain over the dorsum of the wrist and decreased grip strength in the right.
205 There was restriction of thoracolumbar movement limited by pain; straight leg raising was to 50 degrees on the left and 30 degrees on the right. There was tenderness over L3 to S1 and over the facet joints and over the right sacroiliac joint.
206 There was normal abduction but painful and restricted adduction of the right hip; flexion and extension were normal.
207 Dr Baynes thought the plaintiff was suffering from a Chronic Pain Syndrome associated with a soft tissue injury to the right side of the trunk and body, as well as a soft tissue injury to the right shoulder; lateral epicondylitis of the right elbow, as well as well as the right L5-S1 disc protrusion to the lumbar spine with surgery with some improvement. He also noted the plaintiff suffered a soft tissue injury to the right hip with an arthroscopy revealing synovitis and a small labral tear.
208 Dr Baynes believed the plaintiff’s current condition and incapacity was materially contributed to by the incident and there did not appear to be any non work related factors involved.
209 Dr Baynes thought the plaintiff had a capacity for alternative duties where there was no lifting greater than 5 kilograms and no lifting from below knee height or above shoulder height. He thought the plaintiff should not be involved in any forceful pushing or pulling with the right dominant hand and should not be involved in any forceful gripping. He also considered the plaintiff should be able to frequently change his posture and not work with constrained postures.
210 Dr Baynes thought a return to work on a limited hours’ basis working three hours, three days a week with a progressive increase in hours would be appropriate.
211 Dr Baynes noted the vocational assessment report of July 2012, which identified several employment options including packer process worker, production worker, contract centre worker and enquiry clerk. He believed work as a packer and process worker doing light work would be appropriate for the plaintiff. However, he questioned the plaintiff’s ability to undertake work in a contract centre or as an enquiry clerk, given his limited literacy skills. He considered other sedentary forms of employment would be appropriate. He thought the plaintiff should be encouraged to undertake a self-managed exercise program. He did not believe the plaintiff needed further hands-on treatment.
212 Three further 2-minute films were tendered but not shown.
Surveillance film
213 There was a minute of film taken on 19 November 2010 which showed the plaintiff walking to his car and then sitting in the front passenger seat.
214 There was about 13 minutes of film taken on 3 January 2011. The plaintiff was initially shown standing out the front of his house playing with his children on their bikes. He then walked down the street with his wife and children to the park. After sitting for a cigarette, the plaintiff then pushed his young child on a swing for about 4 minutes with his right arm, supporting himself holding the framework of the swing with his left hand. The plaintiff then resumed pushing and, a minute later, used both arms to stop the swing. The plaintiff was then shown walking around the park before leaving to go home.
Vocational evidence
215 Healthe Work provided a vocational assessment in August 2013 following an interview with the plaintiff and provision of a number of documents.
216 Taking into account the plaintiff’s background and limited literacy skills, the author, Mr Blyth, psychologist and rehabilitation consultant, did not share the opinion of a previous vocational assessor, who identified contact centre worker, also known as a call centre worker, or enquiry clerk, or a customer service officer as being potentially suitable for the plaintiff. That is, the plaintiff clearly does not have the necessary literacy, computer or administrative skills to currently pursue those occupations and his literacy learning difficulties would render his participation in any commonly available retraining program unlikely to succeed.
217 Mr Blyth’s opinion was the same in regards to other standard sedentary light occupations available in the marketplace. He could not see a viable retraining path in which the plaintiff would be considered to have gained the skills to be a suitable candidate for occupations such as retail sales, administration officer, clerk, manager, professional or similar.
218 It was instead recommended by Mr Blyth that the plaintiff’s realistic employment prospects would be limited to elementary manufacturing or similar occupations where his literacy skills and associated difficulties using computers was not a barrier. It was noted, of course, the number of elementary occupations that also adhere to sedentary light physical demands were somewhat limited.
219 As such, it was Mr Blyth’s opinion the plaintiff’s employment capacity was limited to product assembler, light bench-based work, packer or process line worker.
220 Nabenet provided a vocational assessment of the plaintiff dated 29 April 2014. The authors were Marion Chua, registered psychologist, and Kim Jackman, registered occupational therapist.
221 In their view, the following jobs were suitable for the plaintiff:
§Car park attendant, Werribee Mercy Hospital;
§Tattslotto retail assistant, Watergardens Shopping Centre;
§Car park attendant, Melbourne Airport;
§Gatehouse attendant, Serena Russo Job Access in Port Melbourne.
222 As the range of earnings in these jobs was $22 to $26 per hour, counsel agreed on $25 per hour. If the plaintiff was able to work in excess of 25 hours, he would not suffer the requisite loss of 40 per cent.
Overview
223 It is not disputed the plaintiff suffered a compensable injury in the incident.
224 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[28] 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.”
[28][2006] VSCA 171
225 The plaintiff’s condition has been diagnosed as a right L5-S1 lumbar disc protrusion with S1 irritation, requiring surgery.
226 Whilst the defendant did not deny there was an organic injury,[29] it was submitted there needed to be medical opinion that there was a substantial organic basis to the plaintiff’s present condition.[30]
[29]T70
[30]T76
227 Counsel for the plaintiff submitted the Court is in a position to find a substantial organic basis for the consequences relied upon and it does not matter that there are other chronic pain issues at play in respect of the compensable injury or other conditions.[31]
[31]T83
228 In Meadows v Lichmore Pty Ltd,[32] Maxwell P set out the two step manner in which I ought to approach the task in this case:
“..The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[32][2013] VSCA 201 at paragraphs [21]-[22]
229 The Court of Appeal recently provided guidance as to how this type of issue should be determined. See Nettle JA in Fokas v Staff Australia Pty Ltd.[33]
[33][2013] VSCA 230 at paragraph [5]
230 Whilst a number of medical practitioners consider there to be non organic factors in the plaintiff’s presentation, overall, in my view, the plaintiff’s lumbar spine condition does have a substantial organic basis.
231 Dr Navani diagnosed a lumbar injury, as well as a Chronic Pain Syndrome, and right upper limb injury.
232 Whilst he thought there was an element of non organic factors affecting the plaintiff’s presentation, following surgery for a disc prolapse, Mr Khan thought the plaintiff had been left with significant residual after effects of the back injury and had made an incomplete or partial recovery.
233 Mr O’Brien described pain of a chronic nature, not suggesting a Chronic Pain Syndrome, diagnosing a non-specific organic condition.[34]
[34]T87
234 Mr Miller diagnosed an L5-S1 disc injury, with symptoms persisting post surgery. He described restrictions related to a physical injury.
235 There is radiological evidence supportive of an organic basis for the plaintiff’s ongoing complaints.[35] Following the 2011 MRI scan, it was reported there was continuing protrusion with S1 impingement and there was L5-S1 asymmetrical broadbased disc bulge, right greater than left, with mild compression of the traversing right S1 nerve root and subarticular recess. There was a small right paracentral annular fissure. This investigation has not been commented upon by any medical examiner.
[35]T84
236 Mr Simm, who is relied upon heavily by the defendant, does not include the plaintiff’s ongoing back complaints under the Chronic Pain Syndrome label which he attached to the upper right extremity and right hip. It was conceded by counsel for the defendant, whilst he thought there was a Chronic Pain Syndrome at play, Mr Simm did not completely discount a back injury.[36]
[36]T68
237 Further, there are objective findings in Mr Simm’s examination that support the presence of organic factors.[37]
[37]T88
238 Whilst Dr Baynes seems to have suggested a Chronic Pain Syndrome associated with the right side of the plaintiff’s body, he also diagnosed right L5-S1 disc protrusion to the lumbar spine, requiring surgery.[38]
[38]T73
239 The second limb of the defendant’s submission was that the L5-S1 condition had resolved following the back surgery, as Mr Smith noted in 2011 and Mr Stoney described in 2012.
240 I accept however, that the plaintiff continues to suffer significant low back pain related to the incident injury. Whilst there is some debate as to the cause of his ongoing groin pain, I accept that it has been present since the incident as he confirmed.
241 Although Mr Smith later said the cause of the plaintiff’s groin pain was undetermined, he initially noted that pain came on at the time of the incident and therefore it was also work related.
242 Mr Simm originally thought the plaintiff’s right hip and groin pain was probably referred from lumbar disc pathology but for some reason, not explained, he thought such pain was now part of the plaintiff’s multi focal chronic pain illness.[39]
[39]T89
Credit
243 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[40]
“… 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.”
[40](2010) 31 VR 1 at paragraph [12]
244 Counsel for the defendant submitted the film showed a man using his right shoulder far more than he had told doctors he could do.[41]
[41]T78
245 However, in my view, the surveillance film was not really of any assistance to the defendant. The plaintiff was shown walking slowly, before the operation, and pushing a small child on a swing, not using a great deal of force, with his right arm.[42]
[42]T77
246 The plaintiff was under surveillance for fifteen days where he was observed for at last half a day at a time, not doing anything, not coming outside his house.[43]
[43]T61
247 I found the plaintiff to be a truthful witness who gave answers honestly and did not exaggerate his condition.
248 I accept the submission by counsel for the plaintiff that there is not any credit material of any substance in this case. The plaintiff had surgery at a young age and had done his best to keep going, albeit developing some psychological issues in respect of pain in relation to other parts of his body.[44]
[44]T95
249 The plaintiff’s partner, Tegan, who swore an affidavit on 23 May 2014, was not cross-examined. There was no suggestion by any doctor of any deliberate embellishment or exaggeration by the plaintiff on examination.
Pain and suffering
250 Counsel for the defendant described the application as a “range case” and submitted functional issues were relevant to an assessment of pain and suffering consequences.[45]
[45]T80
251 President Maxwell, in Haden Engineering Pty Ltd v McKinnon,[46] stated that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[46](Supra) at paragraph [11]
252 I accept the plaintiff continues to suffer ongoing, constant back pain, despite surgery. Nightly, he also has pain travelling down his right buttock into the back of his leg. Whilst the numbness in his right foot resolved with surgery, his back, right buttock and leg pain has remained without improvement. Right groin pain is constant, but variable.
253 There really was not any evidence to significantly contradict the plaintiff’s evidence about pain and suffering consequences.
254 I do not accept the plaintiff has an active lifestyle, as counsel for the defendant suggested. The plaintiff’s day simply involves organising his children for school and having a coffee occasionally with friends at their rural properties.
255 The plaintiff takes a range of painkilling medication, mainly for his back pain
256 As Dodds-Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[47] 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.
[47][2007] VSCA 267 at paragraph [199]
257 The plaintiff is now only thirty six.
258 In Stijepic v One Force Group Aust Pty Ltd,[48] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[48][2009] VSCA 181 at paragraph [43]
259 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
260 The consensus of recent medical opinion is that as a result of his back condition, the plaintiff does not have a capacity for pre injury duties or other types of manual work.
261 This is a serious consequence for a relatively young man.
262 The prognosis for the plaintiff’s back condition is only fair. As his back pain has persisted for nearly seven years, despite some improvement with surgery, I am satisfied the impairment of his lumbar spine is permanent.
Loss of earning capacity
263 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).
264 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.
265 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
266 “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.
267 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.
268 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; See Barwon Spinners Pty Ltd & Ors v Podolak.[49]
[49](supra) at paragraph [70]
269 There is no dispute about the “without injury” earnings figure in this case.
270 The agreed “without injury” earnings figure is $54,350, sixty per cent of which is $32,510. It was agreed that resulted in a weekly figure of $627.
271 In order for the plaintiff to succeed on economic loss, I would have to accept the plaintiff could work more than 25 hours a week.
Medical opinion
272 Mr Khan did not think the plaintiff had a realistic capacity for suitable employment, as with his back he could not sit or stand for long periods or run or walk. He had difficulty climbing stairs or lifting weights.
273 In terms of the lumbar spine and right hip, Mr Miller thought the plaintiff would not be able to undertake work involving repetitive bending, lifting weights more than 5 kilograms and would have a requirement to shift his posture regularly. Given his understanding of the plaintiff’s background, he thought a return to work would be highly problematic.
274 Whilst Mr O’Brien thought the plaintiff was totally incapacitated, he did not explain upon which injury his conclusion was based. Dr Navani’s opinion was in similar terms.
275 Mr Simm noted, considering the plaintiff had had surgically treated lumbar disc protrusion, he may be unfit for his pre-injury duties or alternatively physically based employment. He thought the plaintiff would probably need some flexibility with sitting and standing and that objects should be handled between knee and chest height and the plaintiff should be confined to handling light objects.
276 Mr Simm thought the plaintiff was capable of working as a product assembler, a packer or process worker and in light bench work.
277 Dr Baynes thought there was a capacity for alternative employment as a packer or process worker with significant lifting restrictions both as to his back and right arm. He also considered the plaintiff should be able to frequently change his posture and not work with constrained postures.
278 Dr Baynes thought a return to work on a limited hours’ basis working three hours, three days a week with a progressive increase in hours would be appropriate.
279 In Mr Blyth’s opinion, the plaintiff’s employment capacity was limited to product assembler (light bench-based work) and packer process line worker. Mr Hartley, however, disagreed with Mr Blyth, and considered the vocational options of product assembler and hand packer, even in the light described, were not viable or suitable vocational options for the plaintiff.
280 In my view, there are only two possible suitable jobs for the plaintiff – namely bench or process work – given his lack of education and people skills and history of only manual work.
281 However, due to the plaintiff’s back injury and related postural tolerances, I consider he would be unsuitable for both positions.
282 I accept, as the plaintiff described, he has difficulty doing the dishes, so bench work would be beyond him. Further, his requirement for rest during the day is related to his back condition.
283 On the basis of his back alone, the plaintiff could not work in either role for more than a couple of hours per day.
284 As the plaintiff described, if was stuck doing things for two or three hours he would be in trouble and then would have to go home and lie down.[50]
[50]T95
285 The plaintiff did not concede if he had no shoulder pain; he could do four or five hours a day bench work.[51] He said this was a “possibility”, stressing his problems with sitting and standing.
[51]T75
286 The plaintiff would be unable to do any job involving driving, as after only fifteen minutes his back pain is such that he has to use the wrong foot on the brake and accelerator.[52]
[52]T90
287 In all these circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of forty per cent, not having the capacity to earn in excess of $627 per week.
288 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g)
289 There is no suggestion in this case of there being any re-training or rehabilitation suitable for the plaintiff.[53]
[53]T96
290 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, 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).
291 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, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[54] and Advanced Wire & Cable Pty Ltd v Abdulle.[55]
[54][2009] VSC 454 at paragraph [147]
[55][2009] VSCA 170
292 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
293 As is clear, in this matter, there is a separate injury also producing pain and suffering and loss of earnings consequences for the plaintiff; namely an injury to the upper right limb that has been diagnosed essentially as a Chronic Pain Syndrome.
294 As the Court of Appeal recently held in Peak Engineering & Anor v McKenzie,[56] I am obliged, so far as the evidence permits, to identify the consequences properly referrable to the original injury – namely that to the lower back – and to exclude the consequences referrable to the injury to the right upper limb.
[56][2014] VSCA 67
295 In this case, both the back injury and the right upper limb injury continue to affect the plaintiff’s daily life and work, and he experiences pain as a result of both conditions.
296 As such, I am required to disentangle the consequences of the two injuries and, having done so, decide whether the consequences attributable to the back impairment satisfy the statutory test.
297 I am bound to identify and exclude the continuing consequences for the plaintiff of his right upper limb injury.
298 Whilst the plaintiff complains of pain in both areas, his pain is mainly in his back. He takes a range of medication for all his health problems but predominantly for his back condition.
299 Whilst he has restricted use of his right upper extremity, the plaintiff’s difficulty with work is related more to his back condition and the resultant inability to maintain a sustained posture and his problems with bending and lifting. A major factor affecting his work ability is also fatigue from back pain, which results in the plaintiff having to lie down and rest during the day.
300 I am satisfied that the plaintiff has a serious injury in relation to his lumbar spine, both in terms of pain and suffering and loss of earning capacity, having identified and excluded consequences relating to the plaintiff’s right upper limb.
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