Nikolaidis v Blue Scope Steel Limited and Victorian WorkCover Authority

[2013] VCC 629

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-12-00153

DIMITRIOS NIKOLAIDIS	Plaintiff
v
BLUE SCOPE STEEL LIMITED	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 April 2013
DATE OF JUDGMENT:	23 May 2013 (Revised)
CASE MAY BE CITED AS:	Nikolaidis v Blue Scope Steel Limited & Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2013] VCC 629

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – Impairment of the lumbar spine – pain and suffering – loss of earning capacity.

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592.

Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Hangay	Velos Lawyers
For the Defendants	Mr I McDonald	Sparke Helmore

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 in a number of incidents during the course of his employment with the first defendant on 16 July and 11 October 2002 and 3 October 2003. (“the said dates”).

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).

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.

Outline of Section 134AB

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 (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 forty 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 three 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 presently aged fifty, having been born in Greece in February 1963.

17      The plaintiff was educated to the age of twelve. At eighteen, he served in the Greek army for a short period and then worked as a cashier in a butcher’s shop.

18      In cross examination, the plaintiff denied he had undertaken a wide range of jobs in Greece. He only worked on the cash register in the butchers shop and he worked as a child at his father’s coffee shop.[3]

[3]Transcript (“T”) 27

19      The plaintiff came to Melbourne in late 1987. When he arrived, he was in good health.

20      On about 16 February 1988, the plaintiff started work with the first defendant as a packer. He then worked as an assistant machine operator, a job which involved considerable lifting and bending and was physically heavy in nature.

21      At work on 16 July 2002 (“the first date”), the plaintiff was involved in heavy lifting and working on his knees to pass a metal strip under sheets of metal to bind the sheets together. When doing so, he experienced severe low back pain which caused him to stop work (“the first incident”).

22      The plaintiff then attended Dr Yap at Sunshine North who referred him for an x‑ray and advised him he had some osteoarthritis in the spine.  In cross-examination, the plaintiff said Dr Yap told him that the result of the x-ray was not clear. The plaintiff at that stage had no time off work.

23      The plaintiff returned to work, and on about 11 October 2002 (“the second date”), he experienced further severe back pain when lifting pallets (“the second incident”). 

24      The plaintiff again saw Dr Yap.  The plaintiff deposed his back pain waxed and waned and he was sent for further x‑rays in October, which he was told showed some moderate arthritic chances in his spine and that he had sprained his back.  He had some symptoms from his back down into his left thigh.

25      In cross examination, the plaintiff could not recall having these x‑rays. Dr Yap told him he should go to back to work. The plaintiff tried but he could not work and his problems continued.[4]

[4]T8

26      The plaintiff deposed that he continued to attempt to work but had ongoing back and left thigh symptoms and on 18 November 2002, he attended Dr Dour in Boronia, (although living in North Sunshine) a Greek speaking doctor, who certified him unfit for two days and then put him on light duties, which the plaintiff continued until 8 September 2003. The plaintiff tried because he loved his work.[5]

[5]T9

27      Dr Dour arranged a CT scan in November 2002 that showed something but was not serious.[6] Dr Dour advised the plaintiff his back pain was musculoligamentous in nature.

[6]T9

28      The plaintiff deposed that while on restricted duties, he had some physiotherapy which he found helped temporarily. In cross examination, he explained he had some physiotherapy organised by the work doctor but it made him worse and he did not have the money to pay for extra physiotherapy because he was unemployed at that time.[7] He could not recall being referred to a physiotherapist by Dr Dour.

[7]T11

29      Dr Dour gave the plaintiff exercises to do at home but they just made him worse and stiff.[8]

[8]T13

30      Because of the plaintiff’s ongoing symptoms, Dr Dour referred him to Mr Love, orthopaedic surgeon, in August 2003. Mr Love suggested the plaintiff undergo an intensive rehabilitation program. The plaintiff could not recall Mr Love mentioning a problem with the plaintiff’s facet joints. [9]

[9]T10

31      The plaintiff attempted to resume normal duties in September 2003.  His work involved packing large pallets and he also worked as a ground crane assistant.  That work involved considerable bending and lifting and prolonged standing. He had to bend and lift heavy pallets and package long coils. He had to load pallets on his own.

32      In cross examination, the plaintiff described his light duties post injury as a crane driver’s assistant which required him to cut the coils off the covers and he just could not do that job. Even that new job was not light. He had to walk a lot and his legs and his body would get very tired and he got to the stage where he could not even feel his body. The duties may have been light but his body could not cope.[10]

[10]T12

33      The plaintiff was coping with light duties but his body was like an invalid and he felt very very tired. His legs were very sore from his low back and his whole body had this tiredness all the time. The pain was going from his back down his thighs to his knees. [11] The pain was very very severe. It was so bad at times at work that the crane operator told the plaintiff to rest as he could not stand up. [12]

[11]T24

[12]T24

34      That situation continued until the plaintiff was cleared for normal duties and hours.[13]

[13]T13

35      The plaintiff did not take tablets because they badly affected his stomach.[14]

[14]T16

36      The plaintiff now takes one tablet in the morning for a hernia. He thought he had stomach problems before his work injury.[15]

[15]T25

37      A few days before the third date, the plaintiff’s back pain got slowly worse. [16]

[16]T14

38      The plaintiff deposed that he had to cease work on the third date when he experienced severe back pain lifting a heavy cover (“the third incident”). 

39      The plaintiff described further how on the third date, he returned to work after a massage. When working later that day, he had a lot of back pain and he called the boss. The plaintiff was told to go to the lunch room where, crying in pain, he waited for the boss. The plaintiff was then told there was no job for him and to go home and see his doctor.[17]

[17]T15

40      The plaintiff then went to Dr Michael at Sydenham Medical Clinic as his doctor was away. Dr Michael arranged for a CT scan. The scan did not show exactly what was wrong.[18]

[18]T17

41      Dr Michael gave the plaintiff one prescription for Panadeine Forte which affected his stomach badly. As far as the plaintiff can recall, that was the last time he took this medication, taking it for only a few days.[19]

[19]T16

42      The plaintiff deposed he had used painkillers but had had gastric problems associated with this medication and thus tried to limit his use thereof.

43      Dr Michael referred the plaintiff to Mr Clifford, orthopaedic surgeon, whom the plaintiff saw in late November 2003. Mr Clifford thought the plaintiff had degenerative disc disease which had been aggravated by his work. 

44      In his viva voce evidence, the plaintiff described his employment being terminated in October 2003 on the basis he was no longer able to do his job.   

45      The plaintiff deposed, because he could not do his normal job he was retrenched in about 2004 and has not returned to work.

46      The plaintiff agreed his claim for weekly payments was rejected and at a February 2004 conciliation, the first defendant agreed to pay weekly payments from 3 October 2003 to 12 February 2004.[20] 

[20]T20

47      At that conciliation, the plaintiff begged his union representative to get him a lighter job. The plaintiff was told there was no job for him. [21] He was given his long service leave and accrued benefits which was his money anyway. [22]

[21]T16

[22]T21

48      Before February 2004, the plaintiff moved to Hoppers Crossing where he built a new double story home after selling his Sunshine home. The Hopper’s Crossing property is unencumbered.

49      In his first affidavit sworn 31 August 2011, the plaintiff described that he experienced persistent low back pain fluctuating in intensity and increasing with activity and he had to take care with what he did to avoid flare ups.

50      In cross examination, the plaintiff responding to the suggestion he thought his medical situation was hopeless said “If only - I wish there was something I could do”.  Having had a scan in May 2009 the plaintiff asked his doctor if there were any further investigations and was told - “Forget it, there is nothing you can do, you have to leave everything alone, everything was showing on the last scan.” [23]

[23]T18

51      Dr Dour told the plaintiff that he should take care and avoid heavy lifting.[24]

[24]T30

52      There is no treatment. If there was, the plaintiff would have it. He had asked his doctor if there was a possibility of an injection or an operation for his condition but he was told there was not and there was nothing he could do.  The plaintiff felt he was a total invalid. Dr Dour said that and told the plaintiff year by year he will get worse and he is getting worse.[25]

[25]T22

53      The plaintiff denied he was not keen to try the exercises as Dr Dour suggested in his report. The plaintiff could not do the exercises, having tried them for a week or two, as the movement was too difficult.[26]

[26]T25-26

54      The plaintiff agreed it is a round trip of two hours between his home and Dr Dour’s surgery. The plaintiff stops on the way for a coffee. Dr Dour gives him a WorkCover certificate and talks to him. The plaintiff agreed he invariably told Dr Dour he is pretty much the same.

55      The plaintiff agreed he made a claim under his superannuation policy in 2005 in relation to which he received about $100,000. He saw a number of doctors in relation to that claim. He could not recall Mr Lugg then suggesting he have a bone scan and an MRI.[27]  

[27]T19

56      An MRI was not done because it was going to cost the plaintiff in excess of $400 and he did not have the money. He did not refuse to have the MRI and bone scan, despite what Dr Dour wrote to his solicitors.[28] He did not have the MRI because the May 2009 CT scan showed what was wrong with him and his doctor said there was no need to have the MRI. [29]

[28]T19

[29]T20

57      Dr Dour had sent the plaintiff in May 2009 for a further CT scan which the plaintiff was told demonstrated disc protrusion causing nerve pressure.

58      Because of the persistence of his low back symptoms going into his thighs and his inability to work, the plaintiff became depressed.

59      The plaintiff deposed that he believed, given his level of education, limited work skills persistence of symptoms and lack of rehabilitation, he was now totally virtually unemployable.  Had he not been injured, he intended to work until normal retirement age.

60      In cross examination, the plaintiff could recall having a vocational assessment with Mr Radley in 2005. Back then the plaintiff’s back was not bad and it did not show much. He was in pain but it was not showing as much as it is nowadays. The scans back then were not clear. The plaintiff explained that he is not relying on what he has been told but what he feels.[30]

[30]T27

61      The plaintiff would have told Mr Radley he could not work. Even before the x rays, the plaintiff felt so bad. He could not work so he was not looking for a job in 2005 nor had he done so since.[31] He then applied for Centrelink benefits and obtained a carer’s pension.

[31]T29

62      The plaintiff has an interest in working but cannot.[32] If he was well he would be working. He wishes to be better because then he would be working

[32]T29

63      In a supplementary affidavit sworn on 19 September 2011, the plaintiff confirmed he was unable to engage in gainful employment as a result of his injuries and currently had no earning capacity. 

64      When the plaintiff worked for the first defendant, he worked overtime earning up to $1,000 per week. He has not earned any income since his retrenchment. 

65      Based on medical advice, the plaintiff did not believe he would regain the capacity to return to work and if he did so, the potential range of employments available would be limited due to his injuries.

66      In his most recent affidavit sworn 9 January 2013, the plaintiff confirmed he continues to suffer from physical restrictions and pain in relation to the discal injury in his lumbar back. The pain is getting progressively worse. 

67      The plaintiff continues to see Dr Dour about once a month and he does not prescribe any medication because it disturbs the plaintiff’s stomach.  The plaintiff is not currently receiving any physical treatment.

68      The plaintiff lives with his wife and spends most of his time at home. She does not work, as she has epilepsy and severe nerve damage, so she needs constant care.

69      In cross examination the plaintiff confirmed his wife suffers from epilepsy and schizophrenia. Since 2004, the plaintiff has received a carer’s benefit of $100 to look after his wife in addition to his own disability support pension.

70      In total, the plaintiff receives $700 in benefits per fortnight and his wife receives a disability support pension of $600. They have a new car. Most of the money goes on bills and they just break even with food.[33]

[33]T31

71      The plaintiff has one daughter and a grandson.  He and his wife babysit the grandson (four and a half months) approximately once or twice a week. The plaintiff’s wife looks after the baby. The month following the hearing, the plaintiff’s daughter is coming to live with them. [34]

[34]T32

72      The plaintiff drives an automatic Holden and his wife does not drive, so she depends on him to drive her to medical appointments and to shopping centres.  When driving in excess of thirty minutes, the plaintiff’s pain is exacerbated and he often finds himself pulling over to the side of the road or he stops at a café for a short break.

73      The plaintiff’s wife carries out most of the household tasks, as the plaintiff finds it difficult to lift and bend. She does all the cooking and cleaning. The plaintiff does virtually no gardening, as he finds it very difficult.  He uses Jim’s Mowing to attend to gardening when required.

74      The plaintiff takes his wife to doctor’s appointments and picks up her medication. He goes and pays all the bills. Lately they have had the shopping delivered because his wife also has a problem with her back.[35]

[35]T32

75      The plaintiff deposed that his pain also disturbs his sleep and he finds it hard to get into a comfortable position.  He sleeps on his back.  When he finds it difficult to get to sleep, he often watches television.  He wakes about once or twice throughout the night because of pain and discomfort.

76      In cross examination, the plaintiff said he did not want to try sleeping tablets as he did not want to get used to taking them.[36] He agreed he told Ms Schneider he was able to relax at night because he was asleep but sometimes he woke up.

[36]T33

77      The plaintiff copes with his injury as best he can.  However, he finds it very hard.  He has lost hope of recovery and often finds himself quite sad, bored and lonely as he can rarely do the things he enjoyed pre injury.

78      The plaintiff used to enjoy going out for dinner with his wife and going to the cinema.

79      In cross examination, the plaintiff described how he no longer went out for dinner with his wife as they had no money and his back hurt if he sat for hours at a time. He last went to the pictures before he stopped work.

80      When the plaintiff gets his pension money, he and his wife go out for a coffee but do not do so for long.[37] After half an hour, his back starts hurting too much and they go for a walk for fifteen minutes. His wife might buy something and they then go home. They have a coffee three to four times a week to forget their troubles and his troubles.

[37]T34

81      Before suffering injury, the plaintiff also enjoyed working and going to work. He feels as a result of his injury his social life is virtually non existent and he has not returned to work.

82      In cross examination, the plaintiff described how his pain changed all the time. It was getting worse and the doctor did tell him that with the passing of the years, he would be getting worse. The plaintiff stated - “touch wood that I do not end up in a wheelchair.”[38]  

[38]T35

83      The pain is constant as though someone is pushing him. It ranges from 6 to 8 out of 10 but sometimes it is worse when he forgets and bends down to get something and he cannot move or walk. He cannot come down the stairs properly and walks like a baby. There is also stiffness and he feels all the time as if the bone is grabbing. It is very severe pain.[39]

[39]T37

84      The plaintiff was shown two video surveillance DVDs.

85      The first was taken on 30 November commencing at about 8.13 am. The plaintiff said when he went out he did not show his pain and did not want people to see it. He noted even someone in a wheelchair could go out for coffee. He has pain all the time but does not show it.[40]

[40]T38

86      The plaintiff asked whether counsel for the defendant could see the way he was walking holding onto his back at one stage because his back was hurting him.

87      The plaintiff said he may look fine “like an apple may look fine on the onside but be rotten inside” - “It’s not right you go around chasing people and take video. I have my problem and I know it.” [41]  

[41]T38

88      The plaintiff agreed he was shown at the petrol station filling his car and then taking it to the Holden dealership for a service. He then went to Harvester Place Shopping Centre in Sunshine where he was shown sitting at a table with his wife having a coffee for about half an hour.

89      When it was suggested to him he was in no apparent discomfort, the plaintiff said: “They were not showing when [he] was moving around. They only take the part that suits them.”[42]

[42]T39

90      The plaintiff agreed he then went to his wife’s hairdresser where he spent about an hour waiting for her to have her hair done.

91      The plaintiff agreed that was an average day – doing a bit of shopping, paying his bills and going to the bank. He agreed it was like being a retiree but said he could not work.

92      When the plaintiff was asked about Mr Nye’s examination on 21 November 2011, nine days before the video, he responded – “I don’t care if they take a video - I still maintain my wife does everything.”[43]

[43]T40

93      It was put to the plaintiff during that examination he was moaning and groaning. The plaintiff said Mr Nye was lying when he said the plaintiff was exaggerating his level of disability. The plaintiff explained he was in pain, he “may look okay but inside only he can feel it.”[44]

[44]T41

94      The plaintiff was shown a second film taken on 18 and 20 September 2012. In the first section he was shown seated in a café. He said he was in constant pain, but he was not showing it. Some people walk along the street with a stick but he doe not do that. [45]

[45]T42

95      The plaintiff and his wife stayed at the café for about an hour to cheer her up as she was feeling depressed. The plaintiff was sitting on a wooden seat but said he was in pain and also was so when getting up and down a couple of times. The pain could have been 6 or 7 out of 10 - he did not know.

96      That morning the plaintiff had driven to Point Cook Shopping Centre, gone to the bank, had a coffee and went shopping.

97      On 20 September, the plaintiff went to Target in Hoppers Crossing with his wife. They were on their way home and she wanted to put some money on her lay by.

98      The plaintiff was shown walking on the footpath with his arms crossed. He said he crossed his arms sometimes when he was in pain and that he then was “in pain 100 per cent”.[46]

[46]T43

99      When it was put to him he was not walking with a limp, the plaintiff described how sometimes he feels like his bones are moving in his low back and he has a bit of a limp “but of course he would not be filming when I am limping he filmed me when I am not limping”.[47]

[47]T43

100     It was suggested to the plaintiff in line with Ms Schneider’s’ views he was fit for a number of light jobs. The plaintiff said he cannot work. He cannot speak or write proper English. There were a lot of Greeks working with the first defendant when the plaintiff worked there. He could exchange pleasantries in English. He disagreed he communicated well with Ms Schneider.

101     The plaintiff explained that jobs not involving prolonged sitting or standing required English skills otherwise he would still have his job with the first defendant. He cannot lift heavier than 5 kilograms, repeating the problem he had bending to his shoes and forgetting his condition and his wife having to help him to a seat. He cannot drive for longer than an hour and a half. Many days he does not go out of the house.

102     There is no job the plaintiff could do. He is not lying. He could not work in a café as he cannot stand. He can just go for a little walk with his wife and then has to sit down.[48]

[48]T46

103     When asked about hand packing or light assembly, the plaintiff replied he begged the first defendant to give him a job which was light but they would not keep him as he could not speak English properly and he did not have any written English skills. He cannot work.  If only he could do so – he liked work.[49]

[49]T47

104     In re-examination, the plaintiff confirmed that in the beginning he discussed a return to work with his doctor. Since then, the plaintiff has not discussed it because he feels he cannot work.

105     When he last worked for the first defendant, the plaintiff was working only about one or two hours a day but most of the time he was sitting around and he could not work.[50]     

[50]T47

Medical evidence

106     Dr Dour reported on 18 November 2002 he had seen the plaintiff that day in regard to low back pain that he had suffered at least since July 2002. 

107     Dr Dour noted the plaintiff then had generally good movement, although restricted with flexion, and he had some low lumbar tenderness.  X-rays were unremarkable.  Dr Dour noted he had ordered a CT scan to try and define whether the plaintiff’s pain was discogenic or musculoligamentous. 

108     On 21 January 2003, Dr Dour wrote to the Conciliation Service noting that he had sent the plaintiff for a CT scan which did not show any abnormality. Dr Dour advised on the current evidence, it appeared the plaintiff suffered from musculoligamentous back pain.  He advised an exercise program and a graduated return to work.  Dr Dour thought if the plaintiff’s symptoms did not subside, an MRI scan may be helpful in continuing the diagnosis. 

109     Dr Dour reported on 18 June 2004 that the plaintiff was given a certificate from 18 to 20 November 2002 and then regular certificates from 21 November 2002. The plaintiff was working part time usually three or four hours a day on light duties until 8 September 2003, when he was cleared for normal duties and normal hours.

110     Dr Dour wrote to the plaintiff’s solicitors on 19 November 2010.  He then advised the plaintiff’s symptoms had remained relatively unchanged over the past few years with his pain being situated across his lower back, aggravated by walking up to half an hour, sitting for extended periods or bending and lifting.  He noted the plaintiff had been reticent to exercise and mobilise as he stated it aggravated his pain.

111     Dr Dour confirmed the May 2009 CT scan showed spondylitic changes prominent at L3-4 with central disc protrusion and cord compromise.  He noted minor broad based disc bulge at L4-5 was not causing any cord compromise and minimal degenerative changes were otherwise seen.

112     In Dr Dour’s opinion, the plaintiff’s symptoms related both to the degenerative process in his lumbar spine and to the functional elements as he tended to focus on his pain.  He suspected the plaintiff’s symptoms would remain static for the foreseeable future.

113     Dr Dour reported in January 2013 that the plaintiff’s symptoms comprised low back pain, worse after moderate exertion; such as walking for 30 minutes or sweeping.  He noted the plaintiff had not complained of pain down his legs.  On examination, the plaintiff exhibited stiffness in all directions.

114     Dr Dour noted the plaintiff had been advised throughout the time of treatment since 2002 to take up graduated back exercises and mobilisation but he had resisted because he felt worse after them.

115     Dr Dour noted the CT scan of May 2009 and diagnosed lumbar spine degeneration resulting in back pain and stiffness and he thought the plaintiff was in a chronic pain syndrome.  He did not think further investigations were indicated and treatment remained difficult due to the plaintiff’s poor insight and outlook into his condition, which Dr Dour thought had stabilised.

116     Mr Bruce Love, orthopaedic surgeon, wrote to Dr Dour on 15 August 2003 thanking him for referring the plaintiff, whom he noted had chronic back pain without specific underlying cause having yet to be demonstrated. 

117     Mr Love thought the plaintiff had radiological evidence of facet joint arthritis and it may be that those findings were the responsible factor in his symptoms.  Mr Love advised, however, he was not convinced that was the only cause of the plaintiff’s pain and the only other measure that could be offered would be an intensive rehabilitation program.

118     Mr Love thought it appropriate to write to WorkCover to get its agreement to meet that cost and he did not have any other measure to offer the plaintiff.  He thought massage was a waste of time and an extensive rehabilitation program was the only way the plaintiff was likely to be helped.

119     Mr Love re examined the plaintiff for the purposes of his total and permanent disablement claim in mid 2005.

120     Mr Love advised that examination revealed the plaintiff to move very little.  There were some inconsistencies on examination.  He thought it probable the plaintiff had underlying mild degenerative disease of the lumbar spine but had been rendered symptomatic by work. However, Mr Love commented his observations of the plaintiff suggested there were patterns of illness behaviour operating where there were non organic factors operating. 

121     Mr Love thought the plaintiff’s prognosis in 2005 was poor and it was unlikely he would work in the foreseeable future.  He could not conceive of any treatment likely to make a meaningful difference to the plaintiff’s condition.  He thought then, the plaintiff did not have a capacity to undertake pre injury work or any form of suitable employment and that the plaintiff could be considered totally and permanently disabled.

122     Mr Dea, physiotherapist from Spinal Management Clinics of Victoria, wrote to Dr Dour on 16 September 2003 thanking him for referral of the plaintiff for management of lumbar pain.

123     Mr Dea advised he agreed with Mr Love’s assessment.  He noted he had seen the plaintiff twice and with minimal movement advice and some focal joint mobilisation, the plaintiff reported feeling one hundred per cent. 

124     Mr Dea noted the plaintiff was keen to continue exercising to remain symptom free and of course he endorsed that.  He did not believe the plaintiff required formal or supervised rehabilitation but a more active lifestyle was warranted.

125     Mr Dea felt the plaintiff was fit to resume full time work, then see if he was able to reintroduce some normal duties again over the next month or so.  If the plaintiff’s condition regressed, he advised he would be more than happy to review him and manage if appropriate.

126     Mr Clifford wrote to Dr Michael on 24 November 2003, having seen the plaintiff as requested.

127     The plaintiff advised that for sixteen years he had worked for the first defendant and during that time he had developed pain in his low back regions, which had been present for the last three years.  The pain now persisted in the plaintiff’s low back and was not radiating and was not associated with any neurological symptoms.  Mr Clifford noted the plaintiff had now been off work for five weeks.

128     Mr Clifford advised on that examination the plaintiff had tenderness around the lumbosacral junction, restricted range of lumbar motion in all directions and his straight leg raising was restricted but not truly positive. 

129     Mr Clifford noted the plaintiff had a CT scan which showed some bulging at L4-5 and the L3-4 regions without any significant impingement. He considered the plaintiff had some degenerative disc disease which was symptomatic at that stage and the plaintiff needed to be continued with conservative management.

130     Dr Michael reported to the plaintiff’s solicitors in April 2005 advising he consulted the plaintiff for the first time on 3 October 2003 when he presented with low back pains that were getting worse for the previous few days before the consultation.  The pain persisted and was not radiating and not associated with any neurological symptoms. 

131     The plaintiff told Dr Michael his low back pains were an ongoing problem on and off since 2002 when he had seen doctors as Boronia who prescribed non steroidal anti inflammatories. 

132     Dr Michael noted the plaintiff believed his lower back pain was work related.  However his claim as a work related injury was rejected. 

133     The plaintiff advised he had been working modified duties and having physiotherapy for eight weeks, but when he returned to normal duties for four hours daily from 29 September 2003, his back pain got worse. 

134     Examination revealed tenderness around the lumbosacral area, restricted range of lumbar movements in all directions and straight leg raising was restricted but not truly positive.

135     Dr Michael noted the plaintiff had undergone a CT scan and been referred to Mr Clifford. He also noted the plaintiff’s WorkCover claim was rejected in October 2003 and in March 2004, the plaintiff received a lump sum at conciliation. 

136     From that time until 1 November 2004, the plaintiff had consulted Dr Michael a few times for Centrelink certificates and medication for his low back and skin psoriasis.

137     Dr Michael advised the plaintiff’s condition may warrant medical treatment for symptomatic relief for his pain when required.  He thought the plaintiff was currently able to engage in gainful modified employment with no heavy lifting, no long standing or repetitive bending but that his work capacity needed to be assessed by an occupational therapist.

138     Dr Michael considered the plaintiff’s low back pain could be work related as his duties required frequent bending and lifting with long standing.

Superannuation claim

139     Dr Michael reported to ComInsure in July 2005.  He concluded the plaintiff was not able to do his pre injury work but was able to do modified duties not requiring frequent bending, heavy lifting or long standing and he was not totally and permanently disabled from working in alternative occupations, not requiring repetitive strain to his low back, no long standing or heavy lifting or repetitive bending.  He considered the plaintiff was totally and permanently disabled from his old job with the first defendant. 

140     The plaintiff was seen in relation to his disablement claim by Mr Hugh Hadley, orthopaedic surgeon, in May 2005.

141     Mr Hadley thought the plaintiff had a chronic strain to his lumbar muscles and injury to his lumbar discs with bulging of L3-4 and L4-5 to which his employment was a significant contributing factor due to bending and lifting.  He thought the plaintiff’s injury had resulted in him having partial incapacity for employment and no capacity for pre injury employment. 

142     Mr Hadley agreed with Dr Michael that the plaintiff could work light duties not requiring heavy manual work, no repetitive bending or long standing. In his view, the plaintiff was fit for only light work where he could keep his back in a good position and he was able to sit or stand as he wished.  He did not consider the plaintiff suffering from total and permanent disablement.

143     Mr Lugg, orthopaedic surgeon, wrote to the plaintiff’s solicitors having seen the plaintiff in December 2005 in relation to his disablement claim.

144     On examination, the plaintiff walked slowly and deliberately but without any limp.  There were some inconsistencies and restriction of lumbar movement on examination.

145     Mr Lugg noted the plaintiff’s examination suggests that there were other factors beyond the purely physical involved in his presentation.  In particular, the plaintiff’s range of movement was markedly less than one would expect to see in someone with only evidence of mild degenerative changes in the spine and there was moderate verbalisation during the interview. 

146     Whilst from a purely physical point of view, Mr Lugg thought the plaintiff could probably return to some form of modified duties, involving marked restrictions on prolonged sitting and standing as well as bending and lifting, from a practical point of view, he thought it would be very difficult for the plaintiff to find such work and his ability to be retrained was very severely limited. 

147     Mr Lugg thought the plaintiff was likely to have his current incapacity levels for the long term.  He thought in addition to non organic factors, the second factor may be that of the plaintiff’s psoriatic arthritis.

148     Mr Lugg thought the plaintiff was probably incapacitated in accordance with the definition to make him eligible for a TPB.  He considered the plaintiff’s current condition incapacitated him sufficiently so he was unlikely to ever engage in his occupation or any other occupation.  If he were the treating doctor, Mr Lugg advised he would probably investigate the plaintiff a little further with a bone scan and MRI scan to further investigate his condition to see if there was any treatable pathology or at least pathology that may be worth treating to gain an improvement in symptoms. 

149     Mr Lugg thought it most likely the condition the plaintiff suffered from, precluded him from being engaged in gainful employment.

150     Dr Albert Kaplan, psychiatrist, examined the plaintiff in July 2005.

151     Dr Kaplan thought the plaintiff displayed no evidence of psychotic features or cognitive impairment.  He considered the plaintiff, from a psychiatric point of view, did not satisfy the State Superannuation Trust of Australia’s definition for a lump sum benefit for total and permanent disablement, as his disability was largely related to his physical injury.

152     Mr Kevin King, orthopaedic surgeon, examined the plaintiff in July 2005. 

153     On examination, Mr King noted there was quite marked limitation of all lower movements of the thoracolumbar spine by spasm and pain, with about a third the normal range of movement.  There was no neurological abnormality.

154     On the basis of the plaintiff’s clear history, Mr King thought it reasonable to assume he did sustain an acute injury to one or more of his lumbar discs and associated ligamentous structures on the first date. Mr King considered such injuries would presumably have been superimposed upon mild pre existing but symptomless degenerative changes. He noted there was a further aggravating injury in October 2003, when the plaintiff was again straining. 

155     Mr King’s overall impression then was the plaintiff could probably manage suitable light duties which did not involve bending, lifting, twisting or straining his back.  He thought the plaintiff was permanently unfit to return to heavy unrestricted manual duties and he considered there was no functional element.  Mr King thought the plaintiff could probably manage light restricted duties which did not involve bending, lifting, straining or twisting his trunk.

Medico-legal evidence

156     Mr Kevin King re examined the plaintiff in February 2010.

157     On examination, there was moderately well marked limitation of all thoracolumbar spinal movements by some pain and spasm, about half normal.  There was no neurological abnormality and straight leg raising was to 70 degrees (45 degrees on the earlier examination). 

158     Mr King noted the May 2009 CT scan and confirmed his clinical opinion remained unchanged since the earlier examination.  In his view, while the plaintiff was permanently unfit to return to heavy work, he could theoretically manage suitable light work with restrictions, but on the other hand from a practical viewpoint, taking into account language problems and lack of special skills, Mr King thought it would obviously be extremely difficult for the plaintiff to find such suitable light or restricted duties.  If the plaintiff could, he would probably manage but was permanently unfit to go back to the sort of work he had done throughout his active adult life because of residual organic injuries to his lumbosacral spine. 

159     On the clinical evidence available to Mr King, on the two occasions he examined the plaintiff, he disagreed with the opinion of Mr Nye that the plaintiff’s current problems were not related to a work injury.  He thought overall the plaintiff’s condition had remained stable over the last four and a half years and there seemed to be no significant psychological overlay. Whilst it was theoretically possible the plaintiff could return to light restricted duties if they became available, Mr King thought the plaintiff was permanently unfit to go back to pre injury employment.

160     Mr Paul Steedman examined the plaintiff in November 2012.

161     The plaintiff then complained of continuing low back pain almost constant, getting worse, radiating down the front of both legs.

162     Examination of the plaintiff’s back revealed stiffness, and movements were all painful. Straight leg raising was 45 degrees each side and lower limb reflexes were sluggish.

163     Mr Steedman thought the plaintiff had suffered all his back problems at work and assessed his industrial impairment as at least 30 per cent.  He diagnosed soft tissue injuries to the lumbar spine with some disc problems.  He did not think the plaintiff required any significant treatment but noted time alone would tell. He thought the plaintiff might benefit from cortisone injections. He regarded the plaintiff’s injury as stabilised.

164     Mr Steedman did not comment on the plaintiff’s employment capacity.

165     On 5 April 2011, the Medical Panel assessed a five per cent whole person impairment resulting from the accepted back injury occurring on July 1 2003.

Claim documentation

166     Impairment benefits claim forms dated 28 June 2006 related to lower back injury on 17 October 2002 and 1 July and 3 October 2003. Liability was accepted on 13 April 2011 pursuant to s98C in relation to a back injury of 3 October 2003.

Vocational evidence

167     An employment assessment was carried out by Flexi Personnel in July 2005 The author, Human resources Consultant Graeme Glasson concluded that on the basis of a number of negative employment factors - age, long term unemployment and unreliability - on balance he did not see any prospects of the plaintiff finding light work with restrictions or being retrained into any suitable vocation, which would be economically self sustaining for him.

168     Bill Radley, psychologist prepared a vocational assessment report in November 2005.

169      Mr Radley concluded that as a result of his injury and related impairment, the plaintiff had no capacity to return to any type of employment for which he currently had the necessary training skills or experience. He had no current work capacity, a situation Mr Radley considered to be permanent. Further, he considered the plaintiff had no capacity for any type of occupational retraining.

The Defendant’s medical evidence

170     Dr Michael reported to the first defendant on 31 January 2004. He then thought the plaintiff was able to work modified duties involving no long standing and avoiding heavy lifting and repetitive bending.

Medico-legal evidence

171     Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on behalf of the first defendant in January 2003.

172     Clinical examination then revealed some changes suggesting some mild degeneration in one of the discs in the upper lumbar spine which Mr Jones thought may be the cause of the plaintiff’s symptoms. 

173     Mr Jones considered as a result of the first incident, the plaintiff was then not fit to return to his former job and he was limited in his ability to do lifting or repeated bending.  He then thought the plaintiff could work full time at his current duties.

174     Mr Jones was sent a video detailing the plaintiff’s work in normal duties.  He believed the plaintiff was capable of undertaking most of the tasks identified, although he noted one of the bending tasks may exacerbate the plaintiff’s back symptoms.  He thought the plaintiff was capable of working up to ten hours a day and that restrictions on the plaintiff’s requirement to bend on a repeated basis or lift weights above 10 kilograms would be appropriate. 

175     Mr Jones then noted that on the available information, the plaintiff’s condition may well have occurred regardless of his employment with the first defendant and the first incident. 

176     Mr Anthony Buzzard, surgeon, first saw the plaintiff in July 2003.

177     On examination, the plaintiff moved around fairly slowly.  There was no significant tenderness in the low back region.  Straight leg raising was to 60 degrees.  Lumbosacral spine movement was accompanied by apparent pain.  There were no significant abnormalities noted in relation to the extremities. 

178     Mr Buzzard thought the plaintiff had some degenerative disease in his spine, which had been manifesting for many years, so the precise details of it remained unclear.  He queried the reliability of the plaintiff’s history and noted the pattern of distribution in the left leg involvement was not that of a classical sciatica situation. 

179     Mr Buzzard thought the plaintiff then required symptomatic treatment and noted the situation was complicated by what appeared to have been a longstanding epigastric problem.  He thought it reasonable to accept there was an employment related aggravation in the first incident and that the plaintiff’s condition would not have occurred had it not been for employment. 

180     Mr Buzzard thought the plaintiff should at present be carrying out light work with a 10 kilogram lifting limit and that he was fit for full time work.  In his view, it was probable the plaintiff would suffer from further episodes of low back pain as a result of the underlying degenerative disc disease.

181     Following re examination in October 2003, Mr Buzzard thought it reasonable to accept the plaintiff had a light work back but that had been now occasioned by the recent aggravation.  In his view, the plaintiff then needed a carefully constructed back exercise program.

182     Upon being provided with further radiological material, Mr Buzzard thought there was not a significant radiological difference between the CT scan of 19 November 2002 and investigations of 3 November 2003. In his view therefore there had not been a significant radiological deterioration.

183     Mr Daryl Nye, neurosurgeon, examined the plaintiff in August 2006.

184     On formal examination, pain behaviour was evident.  There was no spasm of paravertebral musculature.  There was a claimed limitation of thoracolumbar movement accompanied by exclamation and sighing.

185     Mr Nye had available the plain x‑rays of July and October 2002 and the CT scan of November and October 2003.  As a result of the material available, he concluded the plaintiff had very minor degenerative change in his lumbosacral spine consistent with age. 

186     Mr Nye thought it possible, on a number of occasions, work activity resulted in temporary aggravation but he thought there was no evidence to suggest any long term consequences and neurological involvement was excluded.  He did not think the symptoms and physical restrictions reported were consistent with the identified mild degenerative disease and conscious or unconscious exaggeration was strongly suspected. 

187     Mr Nye noted the plaintiff’s progress had not followed any expected pathway with respect to the diagnosis and non organic factors were considered the likely explanation.  He thought the plaintiff suffered from a naturally occurring, constitutionally determined, age related condition. 

188     Mr Nye noted temporary aggravation at work situations was acknowledged but unassociated with any long term sequelae.  He did not think the plaintiff’s condition at that time had arisen or occurred in the course of employment, although he acknowledged possible temporary aggravation.  He thought the effects of any work related aggravation had ceased and suspected voluntary exaggeration of symptoms and particularly movement limitations and that involuntary exaggeration may also be present and relate to the complexity of the plaintiff’s social situation. 

189     In general, Mr Nye thought the prognosis for the identified condition was unfavourable and that the plaintiff’s condition had stabilised. Mr Nye concluded any permanent impairment resulted from non employment factors as indicated, constitutionally determined and age related minor degenerative spinal disease.  He thought the impairment could be reduced if the plaintiff could pursue recommended exercises and particularly walking. He mentioned notably currently no medication was employed.

190     Mr Nye re examined the plaintiff in July 2010.  The plaintiff then said he was experiencing considerable pain that was worse compared to the earlier situation.  Again, during the long interview, the plaintiff was noted to sit in no apparent discomfort and turned repeatedly to address the interpreter.  Formal examination again revealed some pain behaviour.

191     Mr Nye noted the May 2009 CT scan revealed some mild anterior lipping of the vertebral bodies L2 and L3 and similar change at the upper border of L4, with some very minor disc bulges at L3, L4 and L5 and a suggestion of some facet joint degeneration.

192     The appearances of that scan, when compared to a report of a similar examination of 3 October 2003, did not suggest any significant interval change.

193     Following re examination, Mr Nye concluded the plaintiff had mild degenerative change in the lumbar spine and again he acknowledged the possibility of aggravation in work situations with temporary consequences.  He concluded the plaintiff was pain focussed with a tendency to maximise symptoms and the presentation suggested adoption of a chronic invalid role.  He noted that the aggravation was temporary and consequences had now ceased. 

194     Mr Nye did not think the plaintiff was currently capable of undertaking full time pre injury work as a consequence of the physical requirements.  He thought the plaintiff was capable of undertaking alternative duties with restrictions as necessary as to a limitation for repeated spinal movement, avoidance of prolonged unrelieved periods of either standing or sitting and a lifting limit of 5 Kilograms would be appropriate and such should not be conducted from below waist level.

195     Mr Nye did not consider the plaintiff to be totally incapacitated and did not consider him likely to return to full time work in pre injury duties.  He thought the plaintiff was capable of full time work on alternative duties of the type that did not put excessive strain on his back. In his view, the current partial incapacity was not attributable to the effects of the work related condition. In terms of treatment, he thought the plaintiff should be encouraged to walk on a regular basis.  He considered the prognosis to be favourable.

196     On re examination in February 2011, the plaintiff claimed his condition had further deteriorated with an increase in back pain and stiffness.

197     Again, pain behaviour was evident with the plaintiff holding onto his back on ambulation and movements were accompanied by grimacing and sighing.  There was no spasm of paravertebral musculature and an excessive response to gentle palpation was noted.  There was a claimed marked limitation of thoracolumbar movement.

198     Mr Nye noted that following every examination he came to the conclusion the plaintiff had mild degenerative change in the lumbar spine with temporary aggravation and temporary consequences. 

199     Mr Nye suspected development of chronic pain syndrome and adoption of an invalid role.  He considered the reported symptoms and claimed physical restrictions were excessive, having regard to the identified mild lumbar degenerative disc disease, noting the plaintiff’s progress had not followed an expected pathway of recovery, consequent upon development of chronic pain syndrome and adoption of the invalid role. 

200     Mr Nye thought the plaintiff would have experienced symptoms consequent upon mild degenerative lumbar degenerative disease as a naturally occurring condition with radiological changes being consistent with the plaintiff’s age.  He thought the plaintiff’s condition was stable.

201     Following further re examination in November 2011, Mr Nye confirmed his earlier diagnosis and views as to temporary aggravation. He repeated the chronic pain syndrome comments and noted the plaintiff had no impairment with respect to activities of daily living and had a capacity for full time work in an employment with a 5 kilogram lifting restriction and restrictions on standing and bending.  Again, there were some inconsistencies on examination.

202     There was a further re examination in November 2012.  The plaintiff then claimed a worsening with a lot more pain in his back and again extending to both legs with the anterior thigh indicated.  There were again inconsistencies on examination. 

203     Mr Nye confirmed his earlier conclusions and believed there was now an entrenched chronic pain syndrome and adoption of a chronic invalid role and in excess of that which had been demonstrated radiologically. 

204     Mr Nye thought the plaintiff was capable of full time employment as a machine operator and had been so for a considerable period of time.  In consideration of the plaintiff’s lumbar spine condition, Mr Nye thought minor restrictions would be necessary with avoidance of repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of 5 kilograms.  There was a capacity for full time employment on that basis.

Investigations

205     On 19 November 2002, Dr Dour organised a CT scan of the plaintiff’s lumbar spine.  It was reported discs at all levels appeared satisfactory with no evidence of disc herniation.  There was no evidence of canal stenosis.  Facet joints throughout were within normal limits and there was no osteophytic encroachment into the exit foramina seen on either side.  There was no intrinsic bony abnormality noted except for the marginal lipping seen at the L2 level and a degenerative or Schmorl’s node present at the inferior end plate of L4.  The sacroiliac joints were normal.  There was evidence of minor degenerative change, but no disc abnormality or focal change was present.

206     Dr Michael organised a CT scan of the plaintiff’s lumbar spine on 3 October 2003.  It was reported there were annular posterior disc bulges at L3/4 and L4/5 without evidence of nerve root impingement or compression.

Clinical notes

207     Dr Dour’s notes of 11 May 2006 set out that the plaintiff was complaining of constant low back pain.  He was encouraged to do back exercises but not keen.

208     Voltaren was prescribed in February 2003.  It was noted on 21 September 2005 the plaintiff was strongly advised again to mobilise and exercise and he had constant twinges.  On 24 August 2005, it was noted the plaintiff developed back spasm while sitting two weeks ago.  He was advised to do his mobilising exercises, but it was noted he was afraid to do them.

209     On 7 June 2006, it was noted advice regarding a request for an MRI scan and bone scan, the plaintiff does not wish to go ahead.

210     Entries throughout the last couple of years indicated the plaintiff was generally the same, or much the same, and there was no mention of any examination of his lumbar spine.

Vocational evidence

211     Australian Vocational Link carried out an assessment on 2 November 2011.  Leonie Schneider, the author, erring on the side of caution, suggested future work should avoid heavy manual work, frequent heavy lifting exceeding 5 kilograms, excessive bending, stooping, twisting the lower spine and climbing and contain postural variations within reason.

212     Ms Schneider believed the plaintiff could engage in factory based work, machine packaging, hand packing, light assembly, light machine operating and process work.  She also considered he would be suitable for driving work, delivering, and customer counter service work such as a barista and café attendant.

213     Ms Schneider noted the notion of formal vocational training was a moot point as the plaintiff had refused to countenance that as an option.  However, she noted there are a few options identified above that would require extraordinary training. 

214     Ms Schneider thought the plaintiff had a capacity to work as a packer, machine operator, product assembler, process worker, automobile driver, bus and coach driver, courier and postal deliverer and a delivery driver and a café worker.  The average gross weekly wage for a packer was $771.00; a light machine operator, $1,079.00; light product assembly, $883.00; process worker, $643.00; taxi driver, $693.00; driver of a limousine; $926.00, bus driver, $1,205.00; courier pathology delivery, $845.00; light freight delivery, $900.00, and café assistant $609.00.

215     Ms Schneider concluded there were no significant impediments to the plaintiff undertaking a full or part time commitment to employment in light pre injury like work or in suitable sedentary and/or light alternative occupations.  She thought the plaintiff had a considerably greater capacity than he either believed or wished to divulge.

216     In the 2012 report, further wage details were given of the jobs suggested, with packer - $752.00; light machine operator - $1,061.00; light product assembler - $776.00; process worker - $639.00; taxi driver - $7,017.00; driver of a limousine - $958.00; bus driver - $1,060.00; courier pathology delivery - $857.00; light freight delivery - $998.00; café assistant - $576.00 and barista - $650.00.

217     Ms Schneider advised that there was nothing in the plaintiff’s current presentation or circumstances that had drawn her to alter the conclusions released in her initial vocational assessment.  She was still convinced the plaintiff had a current work capacity, that a range of suitable options could be found within the realm of his physical restrictions and that viable jobs existed within his age group and travel from home.

Claim documents

218     A BHP claim form signed by the plaintiff on 24 October 2012 set out an injury on 17 October 2002 to the lower back jumping over the top of conveyors to strap pack. When asked on the form about a previous condition the plaintiff answered “yes. Before 3 month but he thought it was because of the cold.”

219     A BHP claim form signed by the plaintiff on 2 July 2003 set out he suffered injury to his lower back on the previous day lifting steel scrap into a bin.

220     A WorkCover claim form signed by the plaintiff on 29 July 2003 described an injury to the lower back on 1 July 2003 whilst lifting.

221     A claim form signed on 9 October 2003 described an injury lifting on 3 October 2003 on the blanking line - strapping barrel, lifting it to place it in dispenser to strap product- previously been in pain- aggravated pain badly .

Video surveillance

222     There was about half an hour of surveillance film taken on 30 November 2011 commencing at 8.13 am.[51]

[51]Exhibit 1

223     The plaintiff was initially shown driving and then filling his car at a petrol station. He visited a Holden dealership at 9.28am. The plaintiff was then shown sitting with his wife at a coffee shop for about half an hour from 9.47am.  He displayed no discomfort during that time.

224     There was over an hour’s surveillance taken on 18 and 20 September 2012.[52] On the first date, the plaintiff was shown driving at 9.14am and 9.26am. At 9.39am, he walked normally at a shopping centre with his wife. At 9.52am, the plaintiff stood for a couple of minutes in a queue at the bank.

[52]Exhibit 2

225     From 9.58am for the following hour, the plaintiff and his wife were shown seated, talking having a coffee at a café. In the first five minutes, the plaintiff stood a couple of times to get something out of his pocket and he walked off for about a minute. He then sat again for nearly an hour without moving. The plaintiff did not appear in any discomfort during that time chatting to his wife. He did not shift around in his seat. 

226     At 10.54am, the plaintiff and his wife were shown briefly walking from the table and at 11.01 am they were shown in the car.

227     On 20 September 2012 at 8.57am, the plaintiff and his wife were shown in the car. At 9.01am, they attended a petrol station and drove from there two minutes later. At 9.09am, they walked into the shops and were shown later at 9.44am outside Target. For a couple of seconds, the plaintiff was shown walking with his arms crosses. The plaintiff was in no obvious discomfort during the time filmed. The plaintiff, with his wife in the car, was later shown driving away at 9.49am and 9.51 am.

228     In addition to the two exhibited films, there was video surveillance taken on 31 January 2012 and 2 February 2012, which I am told basically was of a similar nature to that tendered.

Other documentation

229     The plaintiff’s solicitors, Antony Sdrinis and Co, wrote to Dr Dour on 6 June 2006, noting that they had previously forwarded Mr Lugg’s report of 31 March 2006.

230     The plaintiff’s solicitors, referred to the penultimate paragraph of the said medical report and advised they would be obliged if Dr Dour would arrange for the plaintiff to undergo a bone scan and an MRI scan as soon as possible.

231     By letter dated 7 June 2006, Dr Dour advised the plaintiff’s solicitors that those procedures were discussed with the plaintiff at his appointment that day and he had refused to have the tests.  

Overview

232     There is no dispute in this matter that the plaintiff suffered a compensable injury in 2002 and 2003 on a number of occasions when he hurt his back at work with the first defendant.

233     Although his claim for weekly payments was not accepted, the plaintiff’s application pursuant to s98C was accepted in relation to the third incident on 3 October 2003.

234     There does not seem to be much dispute between medical practitioners as to the diagnosis of the plaintiff’s condition.

235     The consensus of medical opinion is that the plaintiff suffers from an aggravation of pre-existing asymptomatic degenerative disease in his lumbar spine. 

236     Mr Nye, neurosurgeon, is alone in the view that such aggravation was temporary and ceased. That view was not strongly pursued by counsel, although not given away. Further, counsel for the defendant conceded that a mild degree of degeneration in the plaintiff’s lumbar spine would probably explain some degree of symptoms.[53]

[53]T71

237     The plaintiff has had CT scans in 2002 and 2003 which showed mild degenerative change, and a more recent CT scan in May 2009 was unremarkable.

238     There is no evidence of any neurological abnormality.

239     The majority of medical practitioners are of the view the plaintiff’s condition is organically based with limited support for the contrary view recently expressed by Dr Dour and to a greater extent by Mr Nye on various medico-legal examinations.

240     In closing addresses, counsel for the plaintiff confirmed that the application was brought solely pursuant to sub section (a)[54]

[54]T48

Credit

241     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[55] at paragraph 12:

“… 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.”

[55](2010) 31 VR 1

242     I accept as was submitted by the defendant’s counsel that the plaintiff painted a picture of constant, unremitting pain.

243     The plaintiff in his viva voce evidence maintained he has constant pain in his lower back and legs which continues to worsen.  His evidence was not of a pain of a fluctuating nature of a good day/bad day scenario.

244     Whilst the films taken in 2011 and 2012 were only a snap shot of the plaintiff’s life, there was no indication therein of the plaintiff having any particular difficulty with a range of normal daily activities. There was no visible evidence of the pain and restriction he described. He was shown driving, sitting comfortably, moving relatively easily, sitting for long periods on a wooden seat, carrying out normal social intercourse, inconsistent with a man in constant pain.

245     Further, the film was significant in that the plaintiff had deposed in this third affidavit that because of his back condition he was restricted in his ability to go to restaurants and cafes.  When this issue was raised with him in cross-examination the plaintiff initially said he went to have a cup of coffee when he was paid on pension dates but subsequently conceded he and his wife went regularly for coffee during the week and he was able to sit as shown on the video from half an hour up to an hour without apparent difficulty.

246     Whilst the film was consistent with the plaintiff’s general presentation in the witness box not getting up and down and moaning in a dramatic way as his counsel pointed out, it was inconsistent with the plaintiff’s evidence generally as to his level of pain and restriction.

247     Taking into account the level of activity shown on the film and the lack of any apparent restriction or disability and also the inconsistency between the limited nature of his activities deposed to and what was shown on film, I have some difficulty accepting the plaintiff’s complaints of worsening, constant unremitting pain.

248     Further, a number of medical examiners have reported inconsistencies on examination and embellishment by the plaintiff. Mr Nye has consistently made such observations. Other examiners who have made similar findings include Mr Lugg and Mr Love in 2005. Treating general practitioner, Dr Dour noted in 2010 that functional elements were present and that the plaintiff tended to focus on his pain.

249     The fact the plaintiff may regard himself as an invalid clearly is not the test of whether his impairment is serious.

250     As the Court said in Haden Engineering Pty Ltd v McKinnon,[56] the evidentiary basis of the pain assessment will ordinarily comprise, not only what the plaintiff says about pain (both in court and to doctors) but what the plaintiff does about pain in terms of medication, rest and seeking medical treatment.[57] 

[56]Supra

[57](supra) at paragraph 11

Treatment

251     This is an unusual case in terms of the lack of medical treatment. 

252     The plaintiff only took prescription medication for a couple of weeks in October 2003 explaining he ceased because of its gastric complications.  He has not been prescribed nor sought any sleeping tablets or any anti-inflammatory medication.

253     The plaintiff had only a brief period of physiotherapy in 2003 which he said he discontinued because it caused him further pain.

254     Whilst the plaintiff has undergone a number of CT scans he has not followed the recommendation of Mr Lugg that he undertake an MRI or bone scan. The plaintiff explained he had not had an MRI because it was too expensive and that further tests were not necessary because he had been advised the 2009 investigation showed what was wrong with him and his doctor told him he did not need an MRI.[58]

[58]T20

255     It is not clear as to whether this was in fact the reason why the plaintiff did not undertake these suggested procedures with correspondence to his solicitors from Dr Dour suggesting the plaintiff just was not keen to go ahead with them. Further, Mr Lugg’s suggestion for an MRI predated the 2009 CT scan. 

256     Further, as Dr Dour’s notes set out, the plaintiff was not prepared to do any exercises to help mobilise his back as he explained they caused him too much pain.

257     The plaintiff has been referred to two orthopaedic surgeons who have only seen him once for treatment, having seen Mr Love again in 2005 in the context of his total and permanent disability claim. 

258     Both practitioners recommended conservative treatment with Mr Love suggesting a rehabilitation program which the plaintiff has not undergone and there is no explanation why that had not happened. 

259     No other modalities of treatment, whether mainstream or alternative, have been undertaken by the plaintiff, with him simply maintaining that no treatment assists him or it makes him feel worse.

260     There has been no hydrotherapy treatment and very little in the way of exercise and no massage or acupuncture.  There has been no intervention in the form of any sort of injections or medial blocks and no operations suggested and none contemplated.

261     When the lack of treatment was raised with the plaintiff’s counsel, he could only rely on the continuing attendances with the general practitioner. In that regard however, I note that the plaintiff monthly drives a round trip of 120 kilometres to see Dr Dour (having deposed driving for more than thirty minutes exacerbates his pain). Dr Dour does not provide any treatment or prescribe any medication and does not appear to examine the plaintiff’s back.

What the doctors say about the extent and intensity of the Plaintiff’s pain

262     The plaintiff’s complaints of constant pain were out of proportion to any explicable pathology on any medical view available further.

263     Medical opinion about the extent and intensity of the plaintiff’s pain is not consistent with his complaint of constant pain and total inability to work. 

264     There is no report from general practitioner, Dr Yapp, as to the first incident following which a plain x ray was ordered, although there is a short note from Dr Rodger at the same clinic, forwarding the plaintiff’s notes and advising Dr Yap had retired.

265     Dr Michael treated the plaintiff from October 2003 to November 2004 and he concluded simply the plaintiff’s condition may warrant treatment for symptomatic relief.  He thought the plaintiff was currently able to engage in gainful modified employment with restrictions. In a 2005 report he advised he did not think the plaintiff was totally and permanently disabled.

266     Dr Dour has been the plaintiff’s treating general practitioner since November 2004.  His notes indicate few if any examinations of the plaintiff’s back at all over the last eight years.  The predominant notation is that the plaintiff’s condition is “much the same”.  It seems Dr Dour does not provide any treatment and he does not give the plaintiff prescriptions. 

267     Dr Dour’s initial diagnosis was one of musculoligamentous back pain.  He noted the plaintiff was cleared to return to normal duties and hours as of 8 September 2003. 

268     In his next report six years later and following the 2009 May CT scan, Dr Dour concluded the plaintiff’s symptoms related both to the degenerative process and to functional elements, as the plaintiff tended to focus on his pain.  He made no comments about the plaintiff’s capacity for work.

269     In his latest report of January 2013, Dr Dour noted the plaintiff had not complained of any pain down his legs.  He also noted the plaintiff had been advised throughout the time of treatment to take a graduated back exercise of mobilisation but had resisted because he said he felt worse after them. 

270     Dr Dour diagnosed lumbar spine degeneration resulting in back pain and stiffness and he considered the plaintiff was in a chronic pain syndrome.  He did not think further treatment or investigations were indicated and treatment remained difficult due to the plaintiff’s poor insight and outlook into his condition. 

271     In 2003, Mr Love advised the plaintiff should undergo an intensive rehabilitation program. He was no convinced the facet joint arthritis shown on radiology was the only cause of the plaintiff’s pain.

272     In 2003, Mr Dea, physiotherapist, agreed with Mr Love that the findings were non specific low back pain.

273     Mr Love, on re examination for the total and permanent claim in 2005, noted inconsistencies on examination and diagnosed mild underlying degenerative disease of the lumbar spine rendered symptomatic by work. However, he also found patterns of abnormal illness behaviour operating where there were non organic factors. He could not conceive any treatment likely to make a meaningful difference.

274     Mr Clifford, who saw the plaintiff only once in 2003, thought he had some degenerative disc disease that was symptomatic and he needed conservative treatment.

275     In 2003, Mr Jones thought there had been aggravation of mild degenerative changes at L2-3 and that the plaintiff had a significant work capacity.

276     When Mr Lugg saw the plaintiff in December 2005, he noted inconsistencies on examination and that the range of movement was markedly less than would be expected with someone with only evidence of marked degenerative changes in his spine. Mr Lugg also noted moderate verbalisation during the interview.

277     Medico legal examiner Mr Buzzard’s in 2003 considered the plaintiff had a light work back as did Mr Hadley in 2005 and Mr O’Brien in 2010.

278     There are a number of reports from Mr Nye neurosurgeon, who has seen the plaintiff many times between 2006 and 2013. I accept that his evidence was particularly damaging to the plaintiff’s case in terms of his medical opinion as to diagnosis, the fact he believed the plaintiff was exaggerating and his comments that the plaintiff was capable of undertaking light work.   

Work

279     Counsel for the plaintiff relied upon the interference with work as a serious pain and suffering consequence of the plaintiff’s impairment.[59]   

[59]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, per Dodds-Streeton JA, at paragraph 197

280     It is not the issue in this case that the plaintiff does not have a capacity to undertake pre injury employment and the consensus of medical opinion is that the plaintiff has a light work back.

281     Although cleared for normal full time duties in September 2003, the plaintiff had difficulty with work in the following weeks having to cease work on 3 October 2003 when he was told by the defendant to go home. The plaintiff sought light duties from the defendant in early 2004 but these were not provided and he had been unable to work since that time.

282     Whilst I accept that the plaintiff has a light work back, I do not consider he is precluded from engaging in a wide range of jobs. Counsel for the plaintiff conceded there is no medical support for the proposition that the plaintiff is not capable of suitable employment.

283     There is little medical evidence of the plaintiff’s condition in late October 2003 or of problems he was reporting doing his job at that stage.

284     The plaintiff was cleared for normal full time duties in 8 September 2003 by Dr Dour. When Dr Dour reported in November 2010 he simply noted an aggravation in October 2003 whilst the plaintiff was trying to lift a plate at work. The plaintiff had not worked since, his symptoms remaining relatively unchanged over the past few years.

285     Dr Dour provided no details to explain any change in the plaintiff’s condition from the time of the work clearance in September 2003 to ceasing work the following month.

286     When Dr Clifford reported in November 2003 he noted the plaintiff had been off work for five weeks. He made no comment as to the plaintiff’s work capacity or prognosis at that time.

287     Dr Michael, who saw the plaintiff from 3 October 2003 until November 2004 on a few occasions, reported in April 2005 that the plaintiff was currently able to engage in gainful modified employment not requiring heavy lifting, frequent bending or long standing.

288     Dr Steedman, the most recent medico legal examiner relied upon by the plaintiff did not comment on the plaintiff’s work capacity in his 2012 report, nor did treating general practitioner Dr Dour in his2013 report.

289     In my view, the plaintiff effectively gave up looking for work or considering working after February 2004, when aged only forty one. At that stage he considered he had a capacity for lighter work, making enquiries of the first defendant in that regard. However, after his employment was terminated in October 2004, any potential involvement in the workforce ceased.

290     The plaintiff has not looked for work or registered with any agency. As early as 2005 when he saw Mr Radley, the plaintiff was of the view he would never be able to return to work in the future, he was not actively looking for work and was not registered with any employment agency.

291     In my view, there is merit in the submission by counsel for the defendants that the plaintiff lacks any motivation to return to work.

292     I accept that the plaintiff who is now aged only fifty, has for the last nine years effectively retired from the workforce on the basis of his perception of his level of incapacity which is not supported by medical evidence.

293     The plaintiff is engaged full-time in caring for his wife and receives Commonwealth benefits in relation to thereto in addition to his disability support pension.  In my view, the plaintiff is effectively living the life of a retiree and this has now been the case for some time.

294     I accept that the plaintiff has the capacity to do a range of light work as set out in the recent Vocational Link reports. The 2005 assessments relied upon by the plaintiff are obviously outdated and inconsistent with the preponderance of medical opinion that the plaintiff has a residual capacity for employment.

295     There was no evidence that the plaintiff’s inability to work has been a cause of significant pain and suffering and distress to him. No such complaints have been noted by his treaters.

296     As counsel for the defendants conceded, a light work back may be a serious pain and suffering consequence if the plaintiff was making solid attempts to return to some form of employment but it does not carry much weight at all when the plaintiff has assumed an invalid role, in the absence of any significant medical problem,  and done nothing.

297     Further, in light of my findings as to the plaintiff’s credit and the lack of medical support for any ongoing serious disability, I do not accept that there are any serious consequences relating to the plaintiff’s normal daily and social activities as he deposed.

298     Taking into account all the evidence and in particular, my views as to the plaintiff’s credit, medical opinion and lack of clinical findings to explain the constant and increasing pain the plaintiff describes and the remarkable lack of treatment the plaintiff has received, I am not satisfied any pain and suffering consequences of his back condition are serious.

299     Accordingly the application seeking leave to bring proceedings for damages for pain and suffering is dismissed.

Loss of earning capacity

300     Consistent with my findings in relation to pain and suffering, I am not satisfied the plaintiff  –

(a)    at the date of the hearing, 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).

301     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.

302     The former must be calculated by reference to the six year period specified in s134AB(38)(f).

303     “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.

304     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.

305     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.[60]

[60](supra) at paragraph 70

306     I am therefore required to determine a “without injury” earnings figure.

307     It was agreed between counsel that the without injury earnings figure is $51,865 based on earnings in 2004 of $61,090 less $9,225 for an eligible termination payment.  That equates to gross earnings of $997.40 per week, 60 per cent of which is $598.44 or in round terms, $600 per week.

308     Counsel for the plaintiff struggled to argue there was any medical basis upon which the plaintiff could maintain a permanent loss of earning capacity of 40 per cent.  That was not surprising as, save for Mr Radley in 2005, it is only the plaintiff who does not consider he has a capacity for suitable employment or the ability to undertake retraining.

309     Consistent with the consensus of medical opinion that the plaintiff has a light back, a number of suitable jobs have been suggested by Vocational Link in 2011 and 2012.

310     Working those jobs on a full time basis, no part time capacity having been suggested by treaters or medico legal examiners, the plaintiff would not suffer the requisite 40% loss - earning $1061 as a light machine operator and $776 as a light product assembler.

311     In my view, the plaintiff has the capacity to earn in excess of $600 in a wide variety of the jobs suggested, consistent with medical opinion that he has a light work capacity.

312     Accordingly, the plaintiff’s application seeking leave to bring proceedings for loss of earning capacity is also dismissed.

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