Nissan v Technichem Pty Ltd
[2010] VCC 803
•8 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04657
| ODISHO NISSAN | Plaintiff |
| v | |
| TECHNICHEM PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 May 2010 |
| DATE OF JUDGMENT: | 8 June 2010 |
| CASE MAY BE CITED AS: | Nissan v Technichem Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0803 |
| Revised 18 June 2010 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – nature and extent of injuries – identification of consequences of organic injury to the lumbar spine – disentangling effect of Adjustment Disorder with Mixed Anxiety and a Depressed Mood – reliability of evidence given by plaintiff in issue – application in respect of pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC and | Holding Redlich |
| Mr N R Dubrow | ||
| For the Defendant | Mr M A Hartley SC and | Lander & Rogers |
| Ms C Melis |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages with respect to the pain and suffering and economic loss consequences of an injury sustained by him in the course of his employment with the defendant. The injury relied upon by the plaintiff is an injury to the lumbar spine.
2 In the proceeding, the plaintiff gave evidence and was cross-examined, as did the plaintiff’s treating neurosurgeon, Mr Gregory Malham. Otherwise, the parties relied upon medical reports and sundry documents tendered from their respective Court Books. In addition, the defendant tendered video surveillance evidence of the plaintiff undertaken on two days, namely 3 and 4 February 2010.
The Plaintiff’s Evidence
3 In his two affidavits filed in the proceeding, the plaintiff deposed as follows:
ƒ He was born in Iraq in July 1995. He was educated to the equivalent of
Year 9 and thereafter worked in semi-skilled labouring type occupations.ƒ
He migrated to Australia in 1992 where, on arrival, he studied English for some years; however he said his English is still not very good and he is able only to converse at a basic level.
ƒ
He commenced employment with the defendant in July 2004, by whom he was employed as a casual labourer, working four days a week, between 7.00 am and 3.30 pm.
ƒ
He suffered an injury on 9 August 2005 in the course of manoeuvring a heavy drum containing magnesium. He said that as a result of the injury, he felt immediate pain in his back and pain into both of his legs, the pain radiating into his left leg being the more severe.
ƒ
Some days after the accident, he attended the Northern Hospital and on the next day attended his general practitioner, Dr Minas, who since that time has remained his treating doctor.
ƒ Following the accident, he had some months away from work and eventually returned to light duties. He said that upon his return to work, his duties were increased according to a rehabilitation plan, but that he could not cope with these duties by reason of the presence of back pain, with the result that in July 2006, he ceased work and he has been unable, since that time, to return to work.
ƒ He was referred for treatment to a physiotherapist, Mr Hane; to a
neurosurgeon, Mr Brendan O’Brien; to a musculoskeletal physician, Mr Robert Gassin; to another neurosurgeon, Mr Malham; and to a rehabilitation specialist, Mr Clayton Thomas. The plaintiff relies upon medical reports from each of these witnesses.[1]
[1] Mr Malham also gave evidence in the proceeding.
ƒ At all times conservative management of his condition had been
recommended for him. He described having undertaken gymnasium exercises, “swimming exercises and a regime of walking”. In his first affidavit, he said that he would walk up to three times a day for ten to fifteen minutes but that he could not walk for any longer because to do so exacerbated his lower back pain. He said that his lower back pain did not seem to be improving and that, if anything, it was getting worse; and that he had pain in his lower back every day, although some days were slightly better than others. He described his symptoms being worse in cold weather. He said that his back pain affected his ability to sleep, that he had difficulty sleeping for more than three to four hours at a stretch, that during the night he was required to get up and walk around and that this had resulted in he and his wife sleeping in separate rooms. The plaintiff said that if he sat for more than thirty minutes or so his back pain increased significantly and that standing for thirty minutes or so had the same effect upon his back pain. He described being limited in the work he was able to do around the house and said that he undertook, on a limited basis, activities such a mopping floors or light gardening. He said, however, that he relied on his son to mow the lawns. He described the presence of back pain on a daily basis which was exacerbated by activities such as coughing or sneezing, that he had problems with constipation and that he suffered from a burning sensation in his stomach. He said that he took the following medication:
(i) Panamax, about twice a day;
(ii) Tramal;
(iii) Lyrica;
(iv) Celebrex;
(v) Nexium;(vi) Lexapro;
which medication he took daily. He said that in addition, he took Soma and
Coloxyl to assist him with his stomach problems.
ƒ The plaintiff said he had looked for work with the assistance of a
rehabilitation provider known as Recovre. He said he had applied for about one hundred jobs, had only been granted three interviews and said that once he mentioned his back injury, employers were “simply not interested”. He said that he was now in receipt of a disability pension. The plaintiff described being depressed and anxious by reason of his symptoms.
4 In an affidavit sworn 13 May 2010, the plaintiff deposed:
ƒ That he continued to take medication in the form of Zydol, Mobic and
Lyrica in managing his back pain and that he also took Esipram, which was an anti-depressant, and Ranoxyl, which he used to manage stomach symptoms and reflux. He described continuing to experience constant pain in his low-back which varied in intensity but which was always present. He said he also had symptoms of pain into both his legs which was worse on the left side.
ƒ
That he had attended a physiotherapist, Ms Eskander, in Brunswick and that this treatment did not provide him with any long-lasting relief. He said that he abandoned the treatment for that reason and that he had been told by his doctors that “there is nothing further that they can do for me”.
ƒ
That his injury had impacted upon his sex life, and that the fact that he slept separately from his wife by reason of pain and restlessness, impacted upon their relationship. He described his sleep as being generally poor, saying that he often woke up because of back pain. He said that whilst he had applied for a number of jobs since the termination of his employment with the defendant –
“I don’t know if I could do these jobs but I feel as though I should try. I would like to better support my family financially. I have applied for jobs such as packers and storeman positions but haven’t been successful”. [2]
[2] The plaintiff attached as an exhibit to his affidavit an example of some of the positions which he said he had applied for.
The Plaintiff’s Viva Voce Evidence
5 In cross-examination, the plaintiff said that between the date of his accident and his first consultation with Dr Minas, he attended work every day but was not required to undertake any form of activity. He said that when he returned to light work he restricted himself to lifting no more than 5 kilograms. He said that he started this work in March 2006 but found that when he was lifting 5 kilograms or 7 kilograms this affected his back, and that from time to time he would have to rest and was sometimes required to lie down. He agreed that if he lifted more than 5 kilograms he had symptoms, but that he was able to manage weights of 5 kilograms.
6 The plaintiff did not agree that he had provided a history to his treating physiotherapist that he did not want to work with pain. Nor did he accept that in April 2006, he had taken the view that his back would never improve.[3] Further, the plaintiff denied:
[3] Transcript (“T”) 14
ƒ
providing a history to his physiotherapist that he did not wish to return to the defendant’s employment but was happy to seek alternative employment,[4]
[4] T 15
ƒ that he provided a history to the Recovre Rehabilitation Service during 2006 that his back was improving.[5]
ƒ that he provided a history to his treating physiotherapist that, between
2006 and 2007, his capacity to care for himself had improved, as had his capacity to walk, and that his ability to sleep had improved from sleeping three to four hours to sleeping in the order of six hours.[6]
[5] T 17
[6] T 18-T 20
7 The plaintiff gave evidence that his present sleeping pattern was that he would sleep for up to three hours and that he would then be required to get up and walk about the house. He said that his capacity to stand was limited to twenty minutes, at which time his pain would increase, and that his capacity to sit was approximately half an hour, at which time his pain would increase.[7]
[7] T 21
8 The plaintiff did not accept:
ƒ
that he had told Dr Yong, a consultant who had examined him on behalf of the defendant, that he could sit for sixty minutes and that his standing tolerance was only seven minutes.[8]
ƒ that he had told Mr Han, a physiotherapist, that his exercise and
gymnasium programs had improved his condition, stating:[8] T 22
“I did all that program, swimming, gym, everything to try to
improve my back but nothing happened.”[9]
[9] T 23
[10] T 24
[11] T 24
ƒ the validity of an assessment made by Mr Han that he had achieved a standing tolerance of three hours and a walking tolerance of one hour.[10] Whilst he accepted that Dr Minas, his general practitioner, had recommended that he see a psychologist, he did not agree that he had refused to seek treatment of that nature.[11] 9 The plaintiff accepted that he had provided a history to Dr Kornan, a consulting psychiatrist, that with the onset of stress, he felt as if his legs were paralysed. He said, however that this feeling did not stop him from exercising but rather, that it was pain from his back that prevented him from exercising.[12]
[12] T 25
10 The plaintiff was cross-examined extensively as to his exercise regime. He gave evidence that he walked regularly[13] and that he had given up swimming and the gymnasium.[14] Whilst the plaintiff said that he was doing the exercises recommended to him by his physiotherapist,[15] this evidence was, in my opinion, inconsistent with the evidence previously given by him in which he described his main form of exercise as involving walking. Whilst he agreed that he had responded well to the treatment provided to him by the physiotherapist, Ms Eskander, he said that his back was not good.[16]
[13] T 26
[14] T 26
[15] T 28
[16] T 28
11 The plaintiff said that he had complied with directions given by Mr Malham, his treating neurosurgeon, that he should go to the gymnasium, go swimming and undertake walking. He said that as at September 2008, he was attending the gymnasium, and that between the middle of 2007 and September 2008, he was meeting the costs associated with his attendance at the Coburg Gymnasium personally.[17] He said that although he had told Mr Malham that he was swimming at the gymnasium, the activity that he was actually undertaking at the gymnasium involved walking in the swimming pool. He described walking and swimming as “that’s the same; that’s the same”.[18]
[17] T 64
[18] T 65
12 In re-examination, the plaintiff said that although at the time of his injury he was working less than 38 hours per week, he would have worked full-time if such a position had been offered to him.
13 I found the plaintiff’s evidence in cross-examination to be implausible when he took issue with the fact that he had made some gains in the course of his treatment. It is submitted on behalf of the defendant that the fact that the plaintiff took issue with the histories which were put to him as recorded by medical and allied health practitioners on this topic, clearly indicated that the plaintiff’s evidence as to the progress which he made as the result of the rehabilitation services which he received was unreliable. I largely accept this submission.
14 A number of passages of the plaintiff’s evidence however, struck me as indicating that the plaintiff was doing his best to provide a truthful account of his condition. His willingness to accept that he was fit for light work for short periods of time[19] and that his capacity for work had not altered from that which existed at the time he was making applications for work;[20] and the evidence which he gave as to his inability to recall whether he was taking pain-relieving medication on the dates upon which the surveillance video was taken, are each examples of evidence which did not necessarily promote the plaintiff’s cause and suggested that he was a truthful witness who was doing his best to provide accurate evidence.
[19] T 75
[20] T 74
15 I formed the view that either language or cultural issues may have made the process of giving evidence a difficult one for the plaintiff. The following passage of evidence is illustrative of this fact. An issue arose as to whether, in making applications for employment, the plaintiff had always made written applications, and as to whether all of those applications had been exhibited by him in his affidavit. In seeking to gain an understanding as to the process adopted by the plaintiff in this regard, I enquired of the plaintiff:
“Q: I just want to – so that I understand this clearly, are you saying that there are no jobs for which you have applied that there wasn’t a recording either by letter from you or letter responding to the application?--- A: Only three of them your Honour. Q: Three jobs that you applied for that you do not have a letter either
from yourself or from the prospective employer?---A: Three of the jobs which I applied to I had interview with them.”
(sic)
16 The plaintiff’s answer in this regard was clearly non-responsive to the question which was asked of him. I formed the opinion however, having had the opportunity of observing the pattern of the plaintiff’s responses to questions in the course of his cross-examination, that the fact that this answer, together with a number of the plaintiff’s answers, were not responsive, did not occur by reason of deliberate obfuscation on the plaintiff’s part.
17 Notwithstanding my comments made above, I am of the opinion, that it is appropriate that the defendant should call into question the reliability of the plaintiff’s evidence, particularly as to the progress made by him in the course of his rehabilitation and, accordingly, the evidence given by him as to his capacity to work.
18 In these circumstances, when assessing the extent of the plaintiff’s disability and his capacity for work, I consider that it is important to closely scrutinise the plaintiff’s evidence and assess that evidence in the context of the medical and allied evidence which has charted the plaintiff’s progress following his injury.
19 The starting point of such an analysis is to take into account the fact that:
(i) following his injury of 9 August 2005, the plaintiff returned to employment with the defendant in modified duties on 23 January 2006 and continued to work until 2 March 2006 when he suffered an exacerbation of his back pain; (ii) notwithstanding the exacerbation of his condition, the plaintiff again returned to work for the defendant and continued in that employment until 30 August 2006. 20 In my opinion, each of these actions speak positively to the plaintiff’s credit upon the issue as to whether he possessed an attitude of minimising the consequences of his injury upon his earning capacity. Further, I am of the opinion that the attitude of the plaintiff to the attempts to rehabilitate him also speak in his favour in this regard.
21 The plaintiff’s return to work and his rehabilitation was monitored by Recovre, a rehabilitation provider. A number of reports from this organisation have been tendered by the parties, the earliest being a report dated 5 December 2005 and the most recent being a report dated 25 February 2008. Recovre was initially involved in supervising the plaintiff’s to return to light work with the defendant. In December 2005, Recovre reported the plaintiff as being “extremely compliant with the IDR Program and with regards to attendance” and noted that he was working well towards the goals which had been set for him.[21] Similar comments were made by Recovre as to the plaintiff’s attitude in a report dated 13 February 2006, at which time the plaintiff had returned to work, working three days a week for 4 hours a day.[22]
[21] Defendant’s Court Book (“DCB”) 141
[22] DCB 146
22 In a report dated 5 April 2006, Recovre documents the fact that the plaintiff had suffered an injury on 2 March 2006, when he reported that he had suffered an exacerbation of back pain on 2 March 2006 whilst lifting 7.5 kilogram bags.
23 In a report dated 9 June 2006, Recovre noted that the plaintiff had ceased work on 5 May 2006, that he was unfit for work until 9 June 2006 and the defendant was no longer making lighter duties available to him.[23]
[23] DCB 154-155
24 I note that throughout the time during which Recovre was assisting the plaintiff with his return to work program, no criticism was made by that organisation as to the plaintiff’s attitude or application to his rehabilitation, rather positive and supportive statements were made in this regard.
25 Similar comments are apposite to the relationship between the plaintiff and Recovre during the period in which that organisation was assisting the plaintiff to seek alternative employment following the cessation of the plaintiff’s employment with the defendant. During this period the plaintiff underwent training, in the course of which a jobseeker plan was developed and he was assisted with “jobsearch methods”; the preparation of a résumé and with “interview techniques”.[24]
[24] DCB 187
26 In a report dated 13 April 2007, Recovre noted that the plaintiff had achieved all the objectives set for him, and that –
“… He has been a regular attendee at Recovre’s facilitated jobseeking groups and has applied for approximately five jobs per week. Whilst Mr Nissan has not been successful in obtaining employment, he has demonstrated that he is a willing jobseeker who is in possession of all the competencies to allow him to conduct and pursue his own jobseeking strategy.”[25]
[25] DCB 160
27 In a final report dated 25 February 2008, Recovre’s rehabilitation consultant reported as follows:
“Mr Nissan reports that he is now motivated to find new employment. He stated that he has applied for a large number of employment opportunities. Recovre has been actively supporting Mr Nissan in his job search as well as helping to provide motivation to apply for new positions. During Mr Nissan’s sessions with Recovre, we have assisted him to apply for further advertised positions as well as provide assistance to explore the hidden job market.
Mr Nissan’s main barrier to obtaining new employment is his apparent negativity towards potential employers. He explained that he does not believe that employers will take him on as he has had a workplace injury. He appears to be focussed on his injury and the things he cannot do rather than selling to potential employers the things that he can do.
The following month will be used to continue to help Mr Nissan with job seeking, however our main task will be to motivate Mr Nissan and to help him understand that he has the necessary skills and abilities to find new employment. Recovre will attempt to help Mr Nissan to focus on the tasks that he can do rather than the things that he cannot do.”
28 Generally, I find that the plaintiff’s attempts to rehabilitate himself, his return to light duties with the defendant and his full cooperation with his rehabilitation provider speak highly in favour of the plaintiff’s credit and his motivation to rehabilitate himself. Further, I am of the opinion that the Recovre assessments tend to corroborate the evidence given by the plaintiff as to the difficulties he was experiencing both with respect to his pain levels and his working capacity during the period of his relationship with that organization.
29 Whilst Dr P Clark, who assessed the plaintiff in July 2006 and March 2007, was critical of the plaintiff’s motivation to return to work, I am of the opinion that the Recovre counsellors are in a far better position to assess the plaintiff’s attitude in this regard given their longstanding relationship with the plaintiff, and I prefer their opinions on this issue.[26]
[26] I also note that Dr Clark took an extreme view as to the extent of the plaintiff’s recovery and his general fitness for work which causes me to question his objectivity.
30 Finally, although I accept the evidence of the various physiotherapists that the plaintiff was making gains in the course of their management of his condition which the plaintiff now no longer acknowledges, I do not feel that this evidence is necessarily a relevant indicator of the plaintiff’s working capacity or that the plaintiff’s lack of reliability when giving evidence on this issue should cause me not to accept his evidence generally.
31 When account is taken of the plaintiff’s repeated attempts to continue in employment with the defendant, together with the positive assessments made by his rehabilitation providers as to his attitude towards his rehabilitation during the two-year period in which their relationship persisted, I am satisfied, notwithstanding the fact that the plaintiff’s evidence was at times unreliable, that:
(i) he has made appropriate attempts to rehabilitate himself; (ii)
his failure to find employment since ceasing work with the defendant stems from his disability and no other factor.[27]
[27] In making this finding, I also rely upon the video surveillance shown in this matter which did not demonstrate the plaintiff to undertake any activity which was inconsistent with his capacity as described in his evidence, and which also in my opinion revealed the plaintiff on repeated occasions to be guarded in his movements and to be moving in a manner consistent with the presence of pain. In this regard I considered that this evidence generally corroborated the evidence given by the plaintiff as to his disability.
The Relevance of Emotional Factors in the Plaintiff’s Presentation
32 It is submitted on behalf of the defendant that the plaintiff’s disability is the combined result of both physical and emotional factors and that the physical consequences of the plaintiff’s injury when considered alone are not such as to satisfy the criteria laid down by the Act, both with respect to the pain and suffering threshold and the economic loss threshold.
33 In asserting this position, the defendant relies on the medical evidence of Dr Yong, Dr Battlay, Dr Kornan and Mr Dooley.
34 Dr Yong first examined the plaintiff on 30 January 2008. In the course of that examination, Dr Yong noted a presence of:
“… positive Waddell’s signs, including axial loading and simulated rotation; and that the plaintiff possessed an ability to straight leg raise when distracted to 80 degrees compared to the result when formally assessed being 30 degrees.”[28]
[28] DCB 104
35 Dr Yong nevertheless expressed the opinion that the plaintiff had a limited working capacity which involved the following restrictions:
ƒ avoid repeated bending and twisting of the back
ƒ vary posture regularly (sit, stand and walk) ƒ avoid firm pushing and pulling ƒ avoid lifting more than 5 kilograms on a repeated basis. 36 In a further report dated 24 November 2009, Mr Yong made similar findings, both as to the presence of Waddell’s signs, and repeated his previously voiced recommendations as to the type of work which the plaintiff was fit to undertake. Notwithstanding the opinion expressed by Dr Yong in both of his reports that there was evidence of magnification of the plaintiff’s symptoms, there is no suggestion by Dr Yong that the psychological magnification of the plaintiff’s symptoms was a major feature of the plaintiff’s presentation or that the restrictions which he opined were appropriate in fixing the plaintiff’s current working capacity were imposed by reason of emotional rather than organic factors.[29]
[29] I note that in fixing those restrictions, Dr Yong expressly took into account the plaintiff’s:
37 In his report dated 11 September 2008, Mr Peter Battlay, an orthopaedic surgeon, commented upon the presence of “a strongly Waddell positive presentation”. I note that Mr Battlay examined the plaintiff only three weeks prior to Dr Yong’s first assessment of the plaintiff and did not thereafter re- examine him. I am of the opinion that the comments which I have made as to the relevance of the Waddell’s findings made by Dr Yong apply equally to the examination by Dr Battlay.
38 Mr Michael Dooley, an orthopaedic surgeon, examined the plaintiff on 13 May 2010. In his report, Mr Dooley noted Dr Yong’s observation of the presence of positive Waddell’s signs and expressed the opinion that, whilst there was an organic component to the plaintiff’s presentation, there was a significant psychological component to his ongoing symptoms. I interpret the basis for Mr Dooley’s opinion in this regard to be based upon his opinion that by 2010, any aggravation suffered by the plaintiff to his underlying degenerative disc disease should be producing only intermittent low-back pain and occasional lower limb pain.[30] Mr Dooley does not explain the reason for this view and it is generally inconsistent with the other medical opinion relied upon by the parties. In these circumstances, I do not find his position persuasive, nor do I accept that the opinion of Mr Dooley as providing persuasive support for the position that emotional factors bear a significant responsibility for the plaintiff’s presentation.
[30] I base this interpretation upon the fact that Mr Dooley made no finding that the plaintiff presented to him with positive Waddell’s findings or that there was any inconsistency in the plaintiff’s presentation.
39 Dr Paul Kornan, psychiatrist, expressed the opinion that the plaintiff presented with an Adjustment Disorder with Mixed Anxiety and a Depressed Mood. It was his opinion that, from the psychiatric viewpoint alone, the plaintiff was fully fit for work and that any incapacity which the plaintiff had for work stemmed from physical/organic factors which were outside Dr Kornan’s area of expertise.[31]
[31] DCB 126
40 In my opinion, the report of Dr Kornan is consistent with the view which I have formed that, whilst the plaintiff may well suffer from some symptoms of anxiety and depression, the primary reason for his symptoms and disability stems from the presence of his organic injury. My opinion in this regard is also influenced by the fact that neither the plaintiff’s treating medical practitioners nor the Recovre rehabilitation providers have suggested that emotional factors bear a significant responsibility for the plaintiff’s presentation.
41 In these circumstances, I am satisfied that the primary reason for the plaintiff’s symptoms and disability stems from the presence of his organic injury.
The Plaintiff’s Capacity for Work
42 Following his injury, the plaintiff has been principally managed by his general practitioner, Dr Minas. In a report dated 10 May 2010, Dr Minas opined:
“Mr Nissan suffers with lower lumbar spine signs although he has made some progress with his rehabilitation progress and has made significant functional improvement. He continually reports ongoing low back pain aggravated by lifting more than 5 kilograms, repetitive bending forward, twisting, turning sides and prolonged sitting or standing. For these very reasons he was put on work restrictions. These ongoing symptoms and functional limitations are typical of lumbar disc injuries. It takes quite a long time before one could expect noticeable improvement.
With regards to his current work capacity, Mr Nissan does not have the capacity to perform his pre-injury duties which requires regular heavy lifting and pushing drums weighing 150 kilograms onto a pallet. Instead he could perform light duties within the limitations mentioned above. He was managing that until they withdrawn (sic) work from him. Since then his is unable to find new job (sic). Unfortunately, it is getting even harder to find one as time goes by. It’s work-related back injury (sic) remains significant factor (sic) to both his ongoing symptoms, current low lifestyle and his unemployed status.”[32]
[32] I note that these comments are virtually identical to those made by Mr Minas in his report dated 7 November 2007, and that in each of his reports, Dr Minas described the plaintiff as a “very responsible man”.
43 In a report dated 15 July 2009, Mr Greg Malham, the plaintiff’s treating neurosurgeon, expressed the opinion that the plaintiff was suffering from symptomatic disc degeneration at the L4-5 and the L5-S1 levels.
44 In the course of evidence given by him in the proceeding, Mr Malham:
• expressed the opinion that it was “very feasible” that the plaintiff was presenting with an aggravation of pre-existing degenerative changes in his back. When asked whether such a condition would normally be expected to abate with physiotherapy and strengthening exercises, Mr Malham responded: “Usually but often, commonly patients have ongoing pain and one of the things I try to do is reassure the patient that their back is safe and they’re not going to come to harm.”[33]
[33] T 53
•
said that his records did not suggest that he noticed any inconsistency in the ability of the plaintiff to move during the course of his examination and that the history provided to the plaintiff by a number of doctors that he felt a weak sensation in both his legs could be explained by the presence of back muscle spasm.[34]
•
expressed the opinion that having regard to the duration of time since the plaintiff’s work injury, he did not require formal ongoing conservative treatment; that prescribed narcotics and anti-inflammatory medication should be employed in the form of short courses to manage acute incidents of pain; and that in the long-term, simple analgesia in the form of Panadol or Panadeine should be employed to manage the plaintiff’s condition.
[34] T 59
45 Mr B O’Brien, a neurosurgeon, examined the plaintiff at the referral of Dr Minas on 23 May 2006. He diagnosed the presence of symptomatic lumbar disc degeneration, commented that he was not aware of the presence of any secondary anxiety or depressive symptoms and opined that alternative employment was recommended for the plaintiff.
46 Mr O’Brien referred the plaintiff to Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. Dr Thomas examined the plaintiff on 28 June 2006. He noted that the plaintiff was, at that time, performing light duties for sixteen hours a week. He opined that the plaintiff could probably “work in the vicinity of 24 hours at a minimum per week and possibly more” in an occupation which:
ƒ did not require him to repetitively lift 5 kilograms from other than between
waist and chest heightƒ did not require him to repetitively twist ƒ did not require him to repetitively bend below waist height ƒ allowed him to sit and stand. 47 Dr Robert Gassin, a musculoskeletal physician, examined the plaintiff at the referral of Dr Minas on 11 April and 14 July 2008. He expressed the opinion that the plaintiff was suffering from pain, most likely arising from a low lumbar disc, that his prognosis was one in which he was likely to suffer from significant persisting low-back and leg pain for the foreseeable future, and that it was unlikely that the plaintiff would return to any physically demanding employment.
48 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff on 19 April 2010. He diagnosed the plaintiff as presenting with an aggravation of chronic disc degeneration within his lumbar spine and opined that given the absence of any similar problems prior to the incident, the incident was responsible for rendering symptomatic, pre-existing asymptomatic disc degeneration in the plaintiff’s lumbar spine. He opined:
“I consider it likely he will continue to have ongoing pain in his back. It is likely that his back pain will slowly deteriorate over a long period of time and therefore I consider the prognosis here is actually fairly poor. I consider that it is likely he will continue to have ongoing pain whatever else is done. He said that he used to weld and paint but he cannot do that. He finds it hard to sleep. He cannot garden and particularly pull out weeds. He states that he used to play volleyball and stated that he was doing this up until the time of the incident and that he has not been able to return to that. He is not able to drive for more than twenty minutes. All of these restrict both his working and recreational activities. The prognosis here is very guarded and I think it is likely he will continue to have pain no matter what else is done.”
49 As the plaintiff’s managing general practitioner, Dr Minas provided certificates as to the plaintiff’s partial incapacity for work which, following the plaintiff’s return to work in early 2006 restricted his duties to:
ƒ no heavy lifting greater than 5 kilograms ƒ no repetitive bending
ƒ no pushing ƒ no standing for more than 2 hours (as at April 2007) and no standing for
more than 1 hour (from March 2008).50 The restrictions imposed by Dr Minas upon the plaintiff’s employment duties are virtually identical to those imposed by Dr Yong when he assessed the plaintiff in January 2008 and November 2009, namely:
ƒ avoid repeated bending and twisting of the back ƒ vary posture regularly (sit, stand and walk) ƒ avoid firm pushing and pulling ƒ avoid lifting more than 5 kilograms on a repeated basis. 51 Dr Thomas, following his assessment of the plaintiff in June 2006, also made similar recommendations as to the restrictions which should be imposed upon the plaintiff’s work.[35]
[35] Whilst this recommendation by Dr Thomas was made some four years ago, I consider that it is still applicable given the opinion expressed at that time by Dr Thomas that the plaintiff’s symptoms would persist going forward and that his recommendations as to appropriate work restrictions have been echoed by Dr Minas in 2008 and Dr Yong in 2009.
52 Given that no other medical practitioners have fixed with any particularity the duties which the plaintiff is fit to undertake, in circumstances in which there is a general consensus in the medical evidence that at best the plaintiff is fit only for restricted duties, I am satisfied that it is appropriate to accept the restrictions recommended by Dr Minas as fixing the plaintiff’s permanent capacity for employment. I make this finding relying upon:
(i)
the similarity between the restrictions imposed by Dr Minas, Dr Thomas and Dr Yong;
(ii)
the opportunity which Dr Minas has had to assess the plaintiff’s capacity over a number of years;
(iii)
the constancy and duration of the plaintiff’s symptoms which satisfies me that they are permanent [36].
[36] In making my finding in this regard, I also rely upon the opinions expressed by Mr Thomas, Mr Yong
53 Further, the assessment by Dr Thomas that the plaintiff possessed a capacity to work only restricted hours when combined with:
(i) the fact that during the thirty-week period between 12 January 2006 and 30 August 2006, the plaintiff worked on average only thirteen hours per week in light restricted duties with the defendant; (ii) the evidence given by the plaintiff as to the level of his symptoms and in particular, the problems which he has in sleeping; satisfies me that the plaintiff’s capacity for restricted duties is a capacity which
could be exercised only on a part time basis.54 The plaintiff underwent a vocational assessment by Ms Katrina Henderson on 4 May 2010. On the basis of the plaintiff’s presentation to her and taking into account:
(i) the various medical opinions which limited the plaintiff’s work tasks; (ii)
the plaintiff’s history of employment and his unsuccessful attempts to find alternate duties;
Ms Henderson undertook an analysis of the Australian and New Zealand
Standard Classification of Occupations, and opined that:
ƒ The plaintiff did not have the capacity for any occupation for which he
was qualified or has work experience.ƒ
She had not been able to find any alternative occupation in which the inherent job requirements were such that they were within the plaintiff’s functional capacity.
ƒ
There were no commercially viable occupations available in the open labour market for which the plaintiff was likely to qualify, and that this situation would continue into the foreseeable future.
55 The evidence of Ms Henderson in this regard was not the subject of specific challenge by the defendant. Whilst in a report dated 3 January 2008, Ms Bree Luciani[37] identified a number of occupations for which the plaintiff might be suited, it is unclear whether Ms Luciani factored into her analysis all of the restrictions imposed by Dr Minas upon the duties the plaintiff was fit to perform.[38] In these circumstances, I prefer the evidence given on this issue by Ms Henderson which, in my opinion, involved a more detailed analysis, both of the plaintiff’s capacity and the relevant employment market.[39]
[37] an Employment Placement Consultant - DCB 188.
[38] Ms Luciani failed to mention the restriction imposed by reason of the plaintiff's inability to stand when she commented upon the then current Certificate of Capacity provided by Dr Minas.
[39] I note that even upon her analysis of the employment market, Ms Luciani described the plaintiff’s job prospects as being below average. It is not clear to me however whether this description was being applied to the existence of work which accommodated the plaintiff’s requirements (this being relevant to the analysis I am required to undertake) or to the plaintiff’s prospects of securing a position (this being irrelevant to the analysis I am required to undertake).
56 When making findings as to the plaintiff’s capacity to earn income in suitable employment, I accept the submission made on the plaintiff’s behalf that I should ignore the possibility of the plaintiff finding fortuitous supportive employment in circumstances in which he is not currently unemployed and I am satisfied that employment which accommodates the plaintiff’s restricted capacity to work does not exist in the market place.[40]
[40] In making this finding, I adopt the analysis of Buchanan JA in Smorgon Steel Mills v Majkic (2008) 21 VR 193.
57 Having regard to:
(i)
the plaintiff’s repeated applications for alternative employment and the assistance provided to him in seeking such employment by the Recovre Rehabilitation Group;
(ii)
the opinion expressed by Ms Henderson which appears to have been borne out in the experience of the plaintiff in his applications for employment;
(iii)
the findings I have made as to the restrictions which apply to the plaintiff’s capacity to work;
I am satisfied that the plaintiff does not have any realistic capacity to engage in suitable employment, namely employment which might reasonably be expected to exist within the true employment market.[41]
[41] My finding in this regard is also supported and influenced by the fact that as at the time the plaintiff ceased working for the defendant, the light restricted duties which he had been performing for the defendant were discontinued: (see the Recovre report at DCB 155.)
The Plaintiff’s Duty to undergo Rehabilitation or Retraining
58 I have quoted at length from the Recovre reports which, in my opinion, reveal the plaintiff to be a person who cooperated at every level with his rehabilitation provider and made numerous job applications, both with and without the assistance of his rehabilitation provider, to no avail.
59 Some criticism was levelled at the plaintiff by the defendant on the grounds that the plaintiff has now ceased applying for work.
60 Having regard to:
(i) the plaintiff’s continuing level of symptoms; (ii)
the plaintiff’s lack of success in finding work notwithstanding the many job applications which he has made and his assessment as being entitled to a disability support pension,
I am satisfied that the requirements imposed by the Act as to the plaintiff’s obligations to undertake appropriate rehabilitation and retraining have been satisfied.
Findings
61 I am satisfied that by reason of organic factors alone, the plaintiff has been rendered for all extent and purposes permanently unemployable in the open labour market and in these circumstances, that the plaintiff has made out his entitlement for an order granting him leave to commence a proceeding claiming damages for the economic loss consequences of his subject injury.
62 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for both the pain and suffering and economic loss consequences of the injury suffered by the plaintiff in the course of his employment with the defendant.[42]
[42] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
63 I will hear the parties as to the precise from the orders sought and upon the issue of costs.
- - -
ƒ underlying diagnosis ƒ current functional capacity
ƒ ability to work restricted duties and hours until termination from the defendant. and Mr Doig.
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