Opara v Victorian WorkCover Authority

[2017] VCC 575

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-16-05207

TIMOTHY AHAM OPARA	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16 and 17 May 2017
DATE OF JUDGMENT:	16 June 2017
CASE MAY BE CITED AS:	Opara v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2017] VCC 575

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity – worker under twenty-six – permanency

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

Cases Cited:State of New South Wales v Moss [2000] NSWCA 133; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 173; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd [2009] VSC 454

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering. Application in relation to loss of earning capacity dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Saunders	Ryan Carlisle Thomas
For the Defendant	Mr M Clarke	Hall & Wilcox

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 the course of his employment with Ampelite Australia Pty Ltd (“the employer”) with the date of the accepted injury being 14 April 2011.[1]

[1]Letter from CGU to the plaintiff

2       The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.

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 injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The body function relied upon is the lumbar spine. 

5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

6 By ss(38)I 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, … fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.

7       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.

8 As the plaintiff was a worker under twenty-six years of age at the date of injury, pursuant to s134AB(38)(e)(i) of the Act, he must establish that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to ss(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.

9       The rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings. 

10      The relevant principles were summarised by Heydon J (as he then was) in State of New South Wales v Moss[2] as follows:

[2][2000] NSWCA 133 at paragraph [71]

(i)    evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;

(ii)   in general it is desirable to have precise evidence of what the plaintiff would have been likely to earn but for the injury and what [the plaintiff] is likely to earn after it;

(iii)   where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [the plaintiff] can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;

(iv)   the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.  It is an issue of calculating the damage to a capacity to carry on various careers.  It is an exercise in estimation of possibilities, not proof of probabilities;

(v)   the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;

(vi)   the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.

11      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

12      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.

[3](2005) 14 VR 622

[4](2006) 14 VR 602

13      The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross-examined.  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

14      The plaintiff is presently aged twenty-six, having been born in Nigeria in February 1991.  He is married, with two young children.

15      When growing up, the plaintiff spoke Igbo at home.  He spoke Pidgin and English in the community.  He was taught in Igbo and English and completed the equivalent of Year 12 in Nigeria.  He can now speak English reasonably well; however, he has a thick accent and often finds it difficult to be understood.  

16      In about 2008, the plaintiff completed a four-week course Certificate III in Aged Care.  He later enrolled in an Advanced Diploma in Electronic Engineering but dropped out as he found the course too difficult.  

17      Prior to commencing work with employer in 2010 as a labourer/despatcher at its factory in Dandenong South,  the plaintiff worked as a personal care assistant at an aged care facility and part time at a gymnasium.

18      The employer manufactured roofing sheets for companies such as Mitre 10.  These sheets were often stacked on racks over shoulder height, which meant the plaintiff often had to reach up and lift them out of the racks and then carry them to different places within the factory by hand.  This work involved in lifting and handling of sheets put a lot of strain on his back (“the work duties”).

19      The plaintiff did a one-week training course in transport and logistics whilst working for the employer.

20      In late 2010, the plaintiff developed pain in his lower back and down his right leg as a result of performing the work duties (“the injury”).[5]  He complained to his manager and was given a back support but stayed on normal duties.

[5]Transcript (“T”)14

Medical treatment post injury

21      In early 2011, the plaintiff saw Dr Lal, general practitioner, in Cranbourne about his back and funded a session of physiotherapy.

22      In April 2011, the plaintiff attended the employer’s doctor and was referred for a lumbar CT scan which showed a protrusion at L4-5.  He then underwent further physiotherapy.

23      The plaintiff was referred to Mr Hunt, orthopaedic surgeon, in September 2011, who arranged a lumbar MRI scan, which confirmed a protrusion in his lower back.  

24      Mr Hunt referred the plaintiff to Dr Lee, a rehabilitation physician, whom the plaintiff saw later in 2011 for further treatment and advice.[6]  The plaintiff underwent an initial course in pain management but was unable to do a longer course because WorkCover would not approve payment.

[6]T19

25      The plaintiff continued to see Dr Lal for treatment and took medication for his back pain.  He also had physiotherapy and chiropractic treatment.

26      In February 2014, the plaintiff started regularly seeing Dr Wang, general practitioner, at Stud Road Medical Centre for treatment and prescriptions.[7]  This practise was close to the plaintiff’s house.  He could not recall when he told Dr Wang when had injured his back at work.[8]

[7]T34.  The plaintiff had seen Dr Wang once previously in 2012

[8]T50

27      Dr Wang arranged for a further lumbar MRI scan in June 2014, which apparently showed disc bulges, and referred the plaintiff to another surgeon for a further opinion.

28      The plaintiff could not recall being referred by Dr Wang to a neurosurgeon, Mr Goldschlager, in June 2014 nor could he recall being referred by this doctor to a rheumatologist.[9]  The plaintiff did not refuse to attend a rheumatologist and has not refused to have any suggested treatment.[10]

[9]T35

[10]T38

29      In September 2015, Dr Wang referred the plaintiff to psychologist, Randolph Monterio, whom he continues to see almost monthly.  The plaintiff was then being prescribed antidepressants.[11]

[11]T48

30      Dr Wang also referred the plaintiff back to Dr Lee, whom the plaintiff saw in September 2015 and early 2016.  Dr Lee initially recommended a ketamine infusion for the plaintiff’s ongoing back pain.

31      The plaintiff denied he failed to attend an examination with Dr Wood in March 2016 organised by WorkCover relating to funding of further medical treatment.[12]

[12]T77

32      The plaintiff undertook a pain management program in mid 2016.[13]  It was not helpful and only assisted him to deal with his pain[14] and taught him coping strategies such as how to carry his child.[15]  It is about a year since the plaintiff last saw Dr Lee.[16]

[13]28 June to 4 August 2016

[14]T58

[15]T83

[16]T55

33      Whilst further pain management has been approved, the plaintiff was not aware this is the case.  He thought, however, WorkCover would consider any further requests for treatment.[17]

[17]T80

34      The plaintiff was given exercises in the pain management program which he continues to do at home.  He also attends a gym at Cranbourne once or twice a week.  He does light work on the treadmill – “a bit of jogging.”[18]  He does not stay at the gym for long – walking maybe for five to ten minutes, and he lifts small dumbbells.   He does not “believe in the gym” and has only been attending since his back injury.[19]

[18]T87

[19]T85

35      The plaintiff agreed that he told Mr Kossmann in February 2017 that walking more than 100 metres caused pain in his right buttock and lower back and he then had to rest.[20]  He still has pain at the gym but he attends as he wants to get better.[21]  He stops to rest when he is on the treadmill.  He might go for three minutes, then start again.  He is not jogging every time.[22]

[20]T87

[21]T89

[22]T131

36      Dr Wang referred the plaintiff to psychiatrist, Dr Tolat, in March 2016.  He has seen her once but another visit is planned.  Having initially denied he had a mental problem, the plaintiff agreed he is depressed and he is taking Pristiq.  However, his mental state was not impacting on his work, as he is not presently working.[23]

[23]T62

37      The plaintiff continues to attend Dr Wang regularly and sees a psychologist once a month.  Having had some chiropractic treatment, in December 2016, the plaintiff started seeing Michael Chan, physiotherapist, for treatment for his back. He funds this treatment though Medicare or his private health insurance.[24]

[24]T111

38      The plaintiff takes two, and sometimes up to four, Panadeine Forte tablets nearly every day and, on occasion, eight tablets.  He also takes Pristiq.  He tries to avoid medication if he can, as it causes constipation.

Work post incident

39      After the injury, the plaintiff’s back condition continued to worsen gradually from doing repetitive and heavy lifting.  He lodged a WorkCover claim in April 2011 which was accepted.

40      The plaintiff was certified fit for light duties by the employer’s doctor; however, he was put back on the duties that aggravated his back pain and he struggled to cope with work and required further time off.  Ultimately, he was given light duties following certification by his general practitioner.[25]

[25]T16

41      The plaintiff last worked for the employer in January 2012, ceasing work because of his back condition.  At that stage, he had been working on alternative duties.  He was then not required to take sheets off the racks, just wrap them and do some sweeping.[26]

[26]T17

42      The plaintiff was in receipt of weekly payments between 24 January 2012 and 7 March 2014.

43      After ceasing work with the employer, the plaintiff attended the rehabilitation provider, Nabenet.  He completed a month-long security course run by Complex Training later in 2012.[27]   

[27]T27

44      The plaintiff tried to work for one day as a security officer at a festival but could not cope, experiencing serious pain and discomfort with prolonged standing.  On that occasion, he had extreme pain from his back into both legs and a burning sensation in his feet, such that it made him cry.[28]

[28]T29

45      Nabenet had given the plaintiff a phone number which he called because of his difficulties on this occasion. He also reported this issue to his general practitioner.[29]  The severe pain continued for about two weeks.[30]

[29]16 January 2013

[30]T32

46      The plaintiff could not work as a security officer at the present time because of his serious back pain.[31]

[31]T121

47      In about 2013-2014, Nabenet suggested the plaintiff see a speech pathologist whom he attended three or four times but could not afford to continue funding.  Some years earlier, he had also had a session of speech therapy at his girlfriend’s suggestion.

48      The plaintiff has difficulty reading and writing in English and makes a lot of mistakes.  Accordingly, he does not believe he could work in an office.

49      During 2012, the plaintiff persisted with the electronics course which he had commenced prior to his injury, but struggled due to his back pain and was unable to complete it.   It might be right that he was attending the course 3 hours a day, four days a week if that was what Dr Lee noted.[32]

[32]T25

50      The plaintiff agreed he was undertaking that course so he would not have to do such physical work.[33]  He struggled because he could not cope with the course content.[34]

[33]T24

[34]T26

51      The plaintiff also attempted an online accounting course funded by the government but struggled with it because of back pain suffered when sitting for prolonged periods.[35]  He did two to three months of the one or two-year course. He tried to obtain an extension of the course but was unsuccessful.[36]

[35]T26

[36]T28

52      In 2013, the plaintiff received a total and permanent disability benefit. He received $150,000 from Australian Super and about $60,000 under another policy with Connetic, after mediation.[37]

[37]T32

53      With this payout, in about July 2014, the plaintiff and a friend, Daniel Obunya, registered a company, Supreme Jump Pty Ltd (“the company”).  They opened an indoor play centre business, Supreme Jump, in Lynbrook (“the business”). Daniel was a silent partner.  The plaintiff put in much more money at the outset.[38]

[38]T40

54      The plaintiff deposed that he monitored the business as best he could.  He occasionally attended to customers.  He opened the doors in the morning when possible.

55      The business commenced operating in September 2014 and closed in August the following year.  The plaintiff ran the business but was not paid a wage.[39]

[39]T124

56      The business was open seven days a week and was staffed by two to four of the plaintiff’s friends.  Most days, he attended the business for two or three hours.  He took medication during that time.[40]

[40]T130

57      Whilst he was aware of the business finances, an accountant looked after the business.  It was sold because it was running at a loss and the plaintiff did not have “the knowledge”.[41]

[41]T44

58      The business made a loss in the 2015 financial year of $34,258.00 with income of $93,065.00 and expenses of $58,807.00.[42]

[42]T130

59      The plaintiff did not tell Dr Wang about the business, as they did not discuss the plaintiff’s work.  He could not remember telling any doctor about the business.[43]

[43]T45

60      When he saw Dr Wang in late August 2015, the plaintiff agreed he told him he was unfit for work.  He did not tell him he was working as he was involved in a business, not a full-time or part-time job.  Dr Wang then asked the plaintiff if he wanted a certificate.[44]

[44]T46

61      In June 2016, the plaintiff started studying a Certificate IV in Disability Care in Keysborough.  His wife had done this course and he decided to do it at her suggestion.   However, he was concerned he would be unable to cope with work in that field.

62      The plaintiff attended classes twice weekly from 9.00am to 3.00pm with regular breaks.  Sometimes he had to leave class early due to back pain.  Sitting for extended periods increased his pain.  He completed the course in November 2016.

63      In February-March 2016, the plaintiff started doing some driving for Uber.[45]  He worked until May 2016.[46]  In the end, he could not cope with the driving because it caused him too much back pain.  He found it too hard to sit in the car for long periods and at the end of his shift, he experienced a lot of pain.

[45]T94

[46]T97

64      When Professor Brazenor saw the plaintiff in October 2016, they did not discuss anything about work.  He did not tell Professor Brazenor about driving for Uber or about the business because there was just no reason to do so.  He did not deliberately not tell Professor Brazenor.[47] In re-examination, the plaintiff said he could not remember much about that conversation but he knew they talked about “that thing”.[48]

[47]T99

[48]T133

65      The plaintiff sent the following email to Uber on 21 June 2016:

“Hi thanks you for the emails stating updating my driver’s licence.  With all good thanks I do appreciate the time I have spent with Uber and I would like to say that Uber should delete me from the whole data and let it be that I have not registered with Uber before.  Driving Uber is not good for my health at the moment and it will cause me more problem on my back.  Please could you delete me completely let it be as if I have not existed before that would be much appreciated.  I will register when I feel I am good and out of pain but for now delete my entire data from your system and I have never driven Uber before and the owner of the car used then has taken her car back.  My name is Timothy Opara.  Thanks for your understanding.”

(sic)

66      The plaintiff asked Uber to remove his data because he was unhappy with how he was being paid and he had back pain.  He was angry and in pain and told Uber he was not driving anymore.[49]  He did not want to drive again with them because they were “not honest”.  If he was “good”, he would start with them again.[50]

[49]T100

[50]T105

67      The plaintiff denied he asked for his data to be removed because he thought it would harm his case.[51]  He also denied he did not mention his Uber driving in his first affidavit for this reason.[52]

[51]T104

[52]T105

68      The plaintiff asked Uber for the data to be deleted because he was unhappy with Uber and he could not work with his back problem.[53]

[53]T134

69      Wage records from Uber indicated the highest amount earned by the plaintiff in any week was $731.00, in the week starting14 March 2016.  He first worked on 22 February that year and last worked on 16 January 2017, when he earned $58.30 for the previous week.[54]

[54]T102

70      The plaintiff was not required to lodge a taxation return in 2016 because his earnings were too low.  The only income in that year was from Uber driving.  He did receive money from the sale of the business – his share of $50,000 to $60,000, which was recorded in the business’ tax return.[55]

[55]T107

71      The plaintiff agreed he had some financial counselling in Cranbourne around the time the business was sold.[56]

[56]T110

72      In January 2017, the plaintiff tried to do some further Uber driving but again, was unable to cope because of his back pain.

73      It was agreed that whilst working at various times for Uber between 22 February 2016 and 21 January 2017, the plaintiff earned about $3,500.00.

74      On 3 March 2017, the plaintiff started work as a disability support worker, working through an agency –ONCALL.  His work at a house in Dingley Hill is light and he does not have to do any lifting.  He cares for one person alone or with the help of a co-worker.[57]

[57]T113

75      On average, the plaintiff works 16 hours a week and on occasions he works as many as 24 hours.  However, he believes he is working as much as he can. When he works 16 hours a week, his back is sore but manageable.  However, when he works longer hours, he is in significant pain by the end of the week.

76      Consequently, the plaintiff often refuses work because of the state of his back, and the agency, which his aware of his injury, only sends him to do one on one or two on one client jobs that are easier.[58]  Maybe once or twice a week he knocks back work because of his back pain.[59]

[58]T113

[59]T134

77      The plaintiff is not sure whether he can work in excess of 24 hours a week.  He has tried 24 to 25 hours but increasing pain was a problem.[60]  Standing to cook is an activity that causes him difficulty, as does the walking during the day.  The more he works, the more pain he gets from his lower back into his leg.[61]

[60]T114

[61]T134

78      The plaintiff’s capacity is 24 hours a week[62] but he has not told the agency this.[63] He could not work 30 hours a week if those hours were offered to him.[64]

[62]T118

[63]T119

[64]T135

79      The following summary of the plaintiff’s payslips from March until 20 April 2017 was agreed upon:

Dates Worked	Hours	Gross Earnings
3 March 2017 4 March 2017	16.5	$623.85
10 March 2017 16 March 2017 18 March 2017	23.5	$900.77
20 March 2017 21 March 2017 22 March 2017	24.5	$778.87
31 March 2017	8	$248.88
28 March 2017 30 March 2017 2 April 2017	23.67	$897.65
5 April 2017 6 April 2017 11 April 2017 13 April 2017 15 April 2017	38	$1,462.93
18 April 2017 20 April 2017	12	$370.32

Consequences

80      In his first affidavit sworn in July 2016, the plaintiff described daily pain, radiating from the low back into his buttocks and down his right leg, sometimes into the right ankle and foot.  He also sometimes had pain in his upper back and neck. 

81      The plaintiff’s back pain fluctuated.  He had low-back pain two or three days a week and on a bad day, he was unable to do very much.  He tended to lie down and rest or have a massage. On those days, medication did not seem to work.

82      The plaintiff continues to suffer chronic low-back pain which radiates into his buttocks and down his right leg and sometimes up his back.  On average, he rates the pain as 5 out of 10.

83      On bad days however, the pain can almost be unbearable.  Most weeks the plaintiff has one or more bad days, especially now he has returned to work.  He still gets pain in his feet and back with prolonged standing.[65]

[65]T120

84      As a result of persisting back pain, the plaintiff’s sleep continues to be poor, with difficulty going to sleep and staying asleep.

Neck condition

85      In 2013, the plaintiff developed neck pain which worsened in 2016.  In March last year, he developed severe neck pain and attended Dr Wang complaining of a sudden onset of neck, shoulder and middle back pain for three days.  He was unable to move his left arm, was prescribed Endone and asked for an urgent appointment at Emergency.[66]

[66]T63

86      The plaintiff agreed he was referred to Mr Timms, neurosurgeon, who would not see him as he was not covered by insurance.[67]

[67]T64

87      The plaintiff attended Dandenong Hospital on two occasions in May 2016.  He agreed he attended on 17 May 2016 complaining of left-sided upper back pain shooting to the left arm.  He denied, as the attendance note indicated, that he was doing some heavy lifting a few days earlier.  He later queried the accuracy of this note with the Hospital. [68]

[68]T67

88      The plaintiff was given Endone for the first time at the Hospital.  He had previously been taking Panadeine Forte and Panadol.  He took Endone whilst his left arm pain continued but no longer does so.[69]  He did not have any physiotherapy treatment for his neck.[70]  He is still waiting for an appointment with a neurosurgeon at the Hospital.[71]

[69]T69

[70]T72

[71]T73

89      Although the plaintiff’s neck pain in 2016 was substantial, it would not stop him from working and does not interfere with, or stop him from, engaging in activities on a day-to-day basis, as is the case with his lower back.

90      Whilst he is still on the waiting list, the plaintiff’s neck and arm symptoms have improved.  At present, his neck has been good.  In the witness box, he indicated pain-free neck movement.  He does have neck pain, but not like before.[72]

[72]T63

Knee condition

91      The plaintiff initially agreed that his knees had been a problem for some years but then said he did not have a problem with his knees, not often – “it happens on and off, once in a while”.  His knee pain does not restrict his movement or his ability to walk or run.[73]

[73]T60

92      While notes from the pain management program in 2016 indicated the plaintiff had problems with his knee during some exercise sessions, he denied this was the case.[74]

[74]T84

Tolerances and restrictions

93      In his first affidavit, the plaintiff described increased back pain from sitting or standing for an extended period.  Sometimes, he also had pins and needles in his feet after standing for too long.  His pain increased if he twisted his back too far at the waist.  He could no longer lift heavy objects.

94      The plaintiff was restricted in what he could do at home.  Cleaning tasks, such as vacuuming or making the beds, caused additional back pain.  His wife then did most of the cleaning and before she moved to Australia, the plaintiff had a friend living with him who did most of it.

95      Before his back injury, playing competitive indoor soccer was the plaintiff’s passion.  He had tried playing since but was unable to continue because of his pain.

96      The plaintiff continues to have difficulty with the range of activities earlier deposed to.  He has problems showering and dressing but is generally able to cope, although he has some problems bending.[75]  Whilst he does what he can, his wife does the heavier household tasks and cooking.[76]

[75]T91

[76]T73

97      The plaintiff is limited in his ability to play with his young son and bathe and care for his baby daughter.  His intimate relationship with his wife has been affected by his back pain.

98      Driving is limited to about 30 minutes due to the plaintiff’s back pain, so he avoids driving long distances when he can.

The Plaintiff’s treaters

99      Dr Sabi Lal, general practitioner from Park Avenue Medical Centre in Cranbourne, reported to the Conciliation Service in September 2012.

100     Dr Lal thought the plaintiff suffered from an L4-5 disc prolapse, causing some referred symptoms to both lower limbs.

101     Dr Lal noted, post injury, even though the plaintiff was certified fit to return to work on modified duties, he was forced to return to former duties which involved heavy lifting, thus aggravating his back pain.  He had not worked since January 2012, and had been fully disabled since then.

102     Dr Lal thought the plaintiff should be retrained to work in jobs which did not involve heavy lifting or prolonged standing, and work which did not put strain on his lower back.  In his view, the plaintiff had no capacity for pre-injury work.

103     Dr Wang from Stud Road Medical Centre first saw the plaintiff in August 2012. The plaintiff was then complaining of chronic lower back pain with radiculopathy to the left foot and heel after an injury a year earlier.

104     Dr Wang noted the plaintiff was referred to Dr Mikhail Aronov, chiropractor, and a CT scan of the lumbar spine was organised.

105     Eighteen months later, the plaintiff presented in February 2014 with recurrent pain on neck and lower back, with limited movement in both areas.

106     On review on 28 May 2014, an MRI scan of the whole spine was organised due to the plaintiff’s worsening neck and back pain, and he was then referred to a neurosurgeon.

107     Dr Wang noted that Associate Professor Tony Goldschlager assessed the plaintiff in July 2014.  He found the plaintiff’s symptoms were not coming from any specific neural compression and advised him to see a rheumatologist to exclude the other possible causes of the muscle fatigue and pain, such as fibromyalgia; however, the plaintiff refused to a see a rheumatologist.

108     Dr Wang noted the plaintiff presented in October 2014 with low mood, and insomnia and anxiety, and he requested an antidepressant.  On review in April 2015, he was complaining of more depressed symptoms and referred to Mr Monterio, a psychologist, for counselling, and he was prescribed Pristiq.

109     Dr Wang noted the plaintiff was referred to Dr Lee, consultant in rehabilitation and pain medicine, on 3 May 2012, and assessed in September that year.  He found the plaintiff had central sensitisation type issues and advised ketamine infusion would be appropriate.

110     On review in September 2015, the plaintiff requested a Centrelink medical certificate because his pain in his neck, back and leg was not improving, and he was no longer fit for work.  He was unable to stand or walk for more than half an hour. 

111     When reviewed in November 2015, the plaintiff still presented with lower back pain, severe, and neck pain, with the neck pain more than the lower back pain. He was then unfit for work.

112     Dr Wang noted that the plaintiff had not told him his lower back was caused by work, and that he had been under WorkCover, until a report was requested in October 2015.  The plaintiff then gave him a history of the incident at work, and then being off on WorkCover.

113     Dr Wang noted the plaintiff was assessed by Mr Hunt, orthopaedic surgeon, in July 2011, and advised to have an MRI scan.

114     Dr Wang noted the plaintiff had been off work since 21 April 2011 and tried to go to a security job for one day.  He had physiotherapy from Dr Aronov and rehabilitation with Dr Lee.

115     Dr Wang diagnosed chronic lower back pain without radiculopathy, with some spinal lesions, chronic neck pain, and depression and anxiety. 

116     Treatment as at November 2015 was chiropractic treatment, if availed, Voltaren, Panadeine Forte and psychological counselling through Medicare, plus Cymbalta, 20 milligrams a day. 

117     Dr Wang then thought the plaintiff may have some work capacity, but it was unknown what kind of jobs he would be fit or able to do.  Therefore, he needed some formal assessment by an occupational physician or the NES vocational assessment, in order to find his work capacity.

118     On 25 February 2016, the plaintiff presented to Dr Wang with both knee pain for several years.  He was referred to Dr Mark Patrick, a rheumatologist, who, in March 2016, assessed him and arranged for investigations of his knees and the whole of his spine.

119     The plaintiff was then referred to Mr Timms, neurosurgeon, in February 2016, but he would only see private patients, and at that time, WorkCover had been ceased.  Therefore, the plaintiff was referred to Outpatients Neurosurgery at Monash Medical Centre on 21 June 2016.

120     Dr Wang noted, during the waiting period, the plaintiff’s pain was severe, and he was unable to sleep at night.  He required another lumbar MRI scan which was carried out in August 2016.

121     Dr Wang thought the plaintiff’s ongoing symptoms were persisting and he must take stronger analgesia, noting he was waiting for the neurosurgeon appointment at Monash.

122     Dr Wang thought the long-term chronic pain and being off work had impacted the plaintiff’s mental status.  He noted, in October 2014, the plaintiff presented with low mood, insomnia and anxiety and requested antidepressants.  On review in April 2015, he was complaining of more depressed symptoms and prescribed Pristiq, and referred to a psychologist.

123     Dr Wang noted the plaintiff was referred to a psychiatrist for assessment in February 2016, and saw Dr Mina Tolat on 8 March 2016, who diagnosed an Adjustment Disorder with Depressed Mood, severe in the context of a work-related injury.

124     Dr Wang diagnosed chronic lower back and left leg pain, cervical spine disc protrusion with chronic neck pain and left radiculopathy, and an Adjustment Disorder with Depressed Mood, severe in the context of a work-related injury.

125     Dr Wang thought the plaintiff’s description of the circumstances of injury implicated the employment as a significant contributing factor.

126     Treatment as at May 2017 included chiropractic and physiotherapy treatment under Medicare; Voltaren, 50 milligrams twice a day if necessary; Panadeine Forte, one to two tablets three times a day, if needed; psychological counselling under a Mental Health Care Program; Pristiq, 50 milligrams daily, and psychiatric assessment, and regular follow-ups six monthly.

127     Dr Wang noted the plaintiff was seeing a neurosurgeon for cervical disc protrusion and may need an innervational procedure.  He thought it was not clear for the prognosis of the cervical spine disc lesion with chronic neck pain, which had been ongoing for more than six years.

128     In terms of the chronic lower back pain, the plaintiff had been complaining of not improving significantly.  The last MRI scan in August 2016 demonstrated mild lumbar disc and facet joint arthropathy, without evidence or nerve root impingement.

129     Dr Wang thought the lower back pain would be improving without interventive procedure in the future; however, an ongoing rehabilitation therapy such as physiotherapy, hydrotherapy, chiropractic therapy and pain management via a multidisciplinary team, would help the plaintiff’s recovery.

130     In addition, Dr Wang noted the plaintiff’s depressed mood was significantly impacting his rehabilitation and that regular psychotherapy, including psychological counselling, oral depressant and psychiatric follow-up, are important for reducing the plaintiff’s mental stress and physical recovery.

131     Dr Wang noted that from 3 March 2017, the plaintiff had been returning to light duties and working up to 10 hours per week under the Centrelink job agency.  He thought the plaintiff could cope with the workload with his ongoing pain and had been referred to a physiotherapist, Michael Chia.[77]

[77]There is no report from Mr Chia

132     Dr Wang thought the plaintiff has present incapacity and will never be able to return to pre-injury duties.  He has some work capacity and is fit to return to part-time light duties at the time being.  He is working up to ten hours a week and copes well currently.  He was not sure what the plaintiff’s maximum hours were.  The only way to find out the maximum limited hours is for him to keep working and increase the workload gradually.

133     The plaintiff first saw Dr Ouyang at Thompson Road Clinic for lower back pain on 12 April 2011.

134     When last seen on 29 April 2011, the plaintiff advised he was upset because his employer would not give him light duties.  He had to twist and lift his back constantly, and his lower back pain was not getting any better.

135     Dr Ouyang thought the plaintiff had lower back pain due to an L4-5 disc protrusion, noting he was treated with anti-inflammatories and analgesics and referred to a physiotherapist.

136     Mr Justin Hunt, orthopaedic surgeon, saw the plaintiff on referral from Dr Lal in July 2011. 

137     Mr Hunt then diagnosed mechanical back pain symptoms, with probable symptomatic lumbar spondylosis at L4-5, motion segment with ill-defined right leg radicular pain symptoms.  He recommended an MRI scan, noting the plaintiff was then coping quite well, and further evaluation in the current workplace was required.

138     Mr Hunt reviewed the plaintiff in September 2011, when he was still on light duties.  The plaintiff advised that standing for prolonged periods tended to aggravate his symptoms, which migrated from the lumbar region up to the cervical spine at times.

139     Mr Hunt thought the results of the August 2011 MRI scan did not well explain the plaintiff’s leg symptoms and thought there was probably some nerve root irritation, as the disc was probably bulging more when the plaintiff was standing.

140     Mr Hunt advised Dr Lal, the difficulty, of course, was how to manage the plaintiff’s symptoms in the longer term, noting he continued to have physiotherapy and should continue on light duties.  Mr Hunt considered a referral to rehabilitation may be beneficial to oversee the plaintiff’s rehabilitation and he would make arrangements for him to see Dr Lee.

141     When last seen in September 2011, Mr Hunt thought the plaintiff had a reduced capacity for work and that his long-term prognosis was not clear, as he did not believe the plaintiff had reached a steady state with regard to his injury.  He noted the plaintiff’s diagnosis was of lumbar spondylosis and back and leg pain symptoms, with the clinical presentation matching the MRI findings.

142     Dr Lee, consultant in rehabilitation and pain medicine, first saw the plaintiff in October 2011.

143     Dr Lee then thought the plaintiff had muscular back pain and that given the radiation of that pain, it would be best to trial medication and give him a prescription for Endep. 

144     Dr Lee thought a rehabilitation program would be considered, but noted the plaintiff currently was not keen.  He thought it would be reasonable to support the plaintiff’s ongoing job attachment, but was concerned about the high pain scores and organised for a four to six-week review, which took place on 3 February 2012.

145     When reviewed on 15 February 2012, the plaintiff had commenced his engineering course, which Dr Lee thought was appropriate.  He considered the plaintiff was not fit for heavy duties, and that with the engagement of NES, he would be suitable for a range of other duties.

146     On 16 January 2103, neurologically, there was no evidence of radiculopathy.  Dr Lee noted a plain CT scan organised in August 2012 was not particularly remarkable.  He suggested the plaintiff trial Cymbalta for up to a month. 

147     Dr Lee thought rehabilitation might be useful to help manage the plaintiff’s pain, but would not cure it, and noted the plaintiff was considering a further surgical opinion with Mr Hunt, as required.

148     The plaintiff had then completed one stage of a security course and trialled a job in crowd control, but was not sustained.

149     In October 2013, Dr Lee noted the plaintiff’s pain appeared to have improved and looked too generalised to look at interventional type approaches.  He suggested the plaintiff gradually wean off Cymbalta. 

150     Dr Lee noted the plaintiff was continuing his accounting studies, which he would hopefully complete at the end of 2014.  He had completed gym and exercise programs, and told Dr Lee the Medical Panel did not see a role for further rehabilitation.

151     Dr Lee next saw the plaintiff on 16 September 2015, not having seen him for nearly two years.

152     At that stage, the plaintiff was not working, and could not finish his Engineering Degree, and could not tolerate security work.  Medications were then Voltaren and Pristiq, and the plaintiff was seeing a psychologist for ongoing adjustment issues.

153     Dr Lee thought the recent MRI scan was essentially normal.  He noted the plaintiff’s pain was mainly in the back and right, more than the left leg, more so the feet. 

154     Dr Lee felt the plaintiff had central sensitisation type issues and that a ketamine injection would be appropriate, for which he would seek approval.  He did not see any role for injections, procedures or surgery.  His main concern was the plaintiff did not tolerate medications very well.  That just meant they would have to go slow.  He would seek approval for this procedure.

155     Geraldine Cannon, speech pathologist, wrote to Dr Lal in October 2013.

156     Ms Cannon advised that the plaintiff had attended an initial speech pathology session on 21 August 2013.  She noted he was presenting with a speech disorder (cluttering) and a rapid rate of speech which was affecting his intelligibility.  It was recommended that he continued to attend speech therapy sessions to improve his communication skills.

157     Dr Tolat, psychiatrist, wrote to Dr Wang in March 2016, thanking him for the referral.

158     Dr Tolat thought the plaintiff presented with symptoms suggestive of an Adjustment Disorder with Depressed Mood, severe in the context of a work-related injury.  She would also like to consider a differential diagnosis of a Depressive Disorder and Chronic Pain Disorder.

159     Dr Tolat made recommendations as to the plaintiff’s medication regime and recommended involvement with a pain management team, and perhaps a rehabilitation team, to help him to get back to a higher level of functioning as it appeared that, over the years, he had fallen into a negative mindset and was not able to move forward in his life.

Investigations

160     The following investigations have been carried out:

·CT scan of the lumbar spine organised by Dr Ouyang in April 2011, showing small posterior disc protrusion and mildly thickened ligamentum flavum at L4-5, mildly indenting the theca

·MRI scan organised by Mr Hunt in August 2011, showing mild L4-5 posterior disc protrusion, which did not result in significant thecal sac stenosis, nor did it impinge upon the exiting or descending nerve roots

·Localised bone study organised by Dr Lee in December 2011 which, apart from a mild lumbar scoliosis, showed no evidence of active osseous pathology in the lumbar spine

·MRI scan of the lumbar spine organised by Dr Lee in May 2012, which was reported to show no significant abnormality to explain the plaintiff’s symptoms

·CT scan of the lumbar spine organised by Dr Wang in August 2012, which showed a mild posterior disc bulge at L4-5 and maybe associated small protrusions to the right of midline

·MRI scan of the thoracic and lumbar spine organised by Dr Wang in June 2014, which was reported to show disc bulges at L3-4 and L4-5 which minimally indent the thecal sac without significant narrowing of the spinal canal.

·Standing MRI scan of the lumbar spine on 2 August 2016 which was reported to show mild a L4-5 disc bulge and mild bilateral lower lumbar facet joint arthropathy.

The Plaintiff’s medico-legal evidence

161     Dr Amanda Sillcock, occupational physician, examined the plaintiff in May 2013.

162     The plaintiff then described static back pain.  He had intermittent pain in the lower part of varying severity and also intermittent pain in his right leg.

163     Dr Sillcock believed the plaintiff was suffering from mechanical back pain, probably compounded by depression.  In her view, he should avoid heavy lifting in excess of 10 kilograms, and prolonged standing.  He was capable of working, provided those restrictions were met.  She believed that he was unfit to do his previous job in the fibreglass factory, as it does not comply with those restrictions and is physically demanding.  He cannot lift 25 kilograms and is unable to stand for continuous periods.

164     Dr Sillcock did not believe the plaintiff would be ever capable of returning to work in his previous occupation.  She thought he was fit to do alternative employment, noting he was currently studying accounting and would not be restricted in performing that type of work

165     Mr David Brownbill, neurosurgeon, examined the plaintiff in May 2017.

166     The plaintiff then described constant lower back pain present all the time, with fluctuations.  Right buttock pain extended down the back of the thigh and lower leg to the big toe, present all the time, with fluctuations.  The pain was severe several times a week and increased with standing.

167     Examination then showed restriction of thoracolumbar spinal movement.  There was no objective neurological abnormality of the lower limbs and no signs of radiculopathy.

168     Mr Brownbill noted radiological investigations had demonstrated mild degenerative changes at the L4-5 lumbar intervertebral disc, with retained disc height and signal, and without frank disc prolapse.

169     Mr Brownbill thought the plaintiff’s demeanour during interview and examination suggested a likely component of anxiety with apparent poor recall of details.

170     On probability, Mr Brownbill considered the plaintiff sustained soft tissue injuries to the structures about the lumbar spine with likely development of L4-5 intervertebral disc, but without neurological abnormality.  He thought the prognosis was uncertain.

171     Because of the plaintiff’s physical injury and impairment of his lower back, Mr Brownbill thought he is likely to be restricted in relation to employment or related activities to a moderate extent in the foreseeable future.  He is also likely to be restricted in social, domestic and/or recreational activities and, to a mild to moderate extent with such incapacity, also likely to continue for the foreseeable future.

172     Mr Brownbill did not consider the plaintiff has a capacity to perform his described full pre-injury duties.

173     Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in February 2016 and February 2017. 

174     On the most recent examination, the plaintiff complained of constant central lower back pain, with right buttock pain and intermittent right posterolateral leg pain radiating as far as the right heel and the right big toe, and associated with hypersensitivity in the right lateral lower leg.

175     The plaintiff told Mr Kossmann he once enjoyed playing soccer; however, was no longer able to do so because of his ongoing back pain.  He stated that walking more than 100 metres caused him pain in his right buttock and lower back pain, and he must rest.  He complained that dressing was difficult, particularly in the morning he had difficulty putting on his shoes and socks.

176     Mr Kossmann diagnosed discogenic and mechanical back pain radiating into the right buttock and right leg in the setting of L4-5 disc protrusion and facet joint hypertrophy at L4-5, neck pain on the background of severe disc space narrowing at C4-5 and, to a lesser extent, C3-4, bilateral and C4-5 foraminal stenosis caused by uncovertebral osteophytes, and right C6-7 neural exit foramen due to uncovertebral osteophytes.  He also diagnosed depression.

177     Mr Kossmann thought the plaintiff’s prognosis was poor, noting he continued to suffer from ongoing pain issues in his lumbar spine which seemed refractory to all conservative treatment.  However, he would require further conservative treatment and investigations, and referral to a pain management specialist, as he may suffer from central sensitisation.

178     Contrary to Professor Brazenor, Mr Kossmann believed the plaintiff has significant pain issues in his lumbar and cervical spine, which can be explained by the x-rays thereof.

179     Mr Kossmann thought the clinical and radiological evidence contradicted Professor Brazenor’s opinion.

180     Mr Kossmann thought the plaintiff has no work capacity for pre-injury employment and he might be able to work on light duties.  He recommended the plaintiff undergo a vocational assessment.

181     In Mr Kossmann’s opinion, the plaintiff is only able to engage in work in which he is not forced to walk long distances, walk on uneven ground, walk upstairs or downstairs, inclines and declines, climb up and down ladders, kneel, squat, or carry heavy items weighing more than 5 kilograms.  The plaintiff is also not able to lift heavy items with his upper extremities or work above shoulder head height.  This incapacity will continue for the foreseeable future.

182     On 13 April 2013, the Medical Panel found that the plaintiff had a 5% whole person impairment resulting from the accepted back (lumbosacral spine) injury.

183     On 18 April 2013, the Panel found that the plaintiff is suffering from persistent lumbosacral spine dysfunction following L4/5 lumbar intervertebral disc injury without radiculopathy and an adjustment disorder with depressed mood, resultant to the claimed low back injury.

The Defendant’s medical evidence

184     The plaintiff presented to Emergency at Monash Medical Centre on 17 May 2016 complaining of cervical spine pain.  The note of that attendance set out:

“Presents with left sided upper back pain shooting to left arm. States he was doing some heavy lifting a few days ago, started to get lower back pain. Went to sleep and then woke up with left neck pain. Ongoing pain and symptoms since, had 2 Diofenac yesterday which did not help.”

185     This note was subsequently amended with the word “days” being crossed out and replaced with the handwritten word “years”.

186     There was a further attendance at Monash Emergency two days later with the presenting problem “Neck and L arm pain, 5/7”.  The provisional diagnosis was cervical radiculopathy and analgesia was prescribed.

The Defendant’s medico-legal evidence

187     Professor Vernon Marshall, Professor of Surgery, examined the plaintiff in April 2012.

188     The plaintiff then reported constant lower back pain down the legs to the ankles.

189     Professor Marshall diagnosed a work strain soft tissue lower back strain injury and persisting discogenic pain without radiculopathy.  He thought the prognosis was stable.

190     Professor Marshall considered the work injury effects had continued to contribute to the plaintiff’s condition and symptoms.  The plaintiff did not have the capacity for pre-injury work, but Professor Marshall believed he had a current work capacity for modified duties not involving lifting of more than 5 kilograms, or frequent bending or stooping, so he would be suitable for light office clerical work.

191     Professor Marshall further reported, having seen surveillance on 11 April 2012.

192     Professor Marshall commented, although the plaintiff’s freedom of mobility of his back appeared in the report to be greater than on examination, he did not believe any significant change was required to his previous report, given the restrictions he had imposed therein.

193     In a further supplementary report, Professor Marshall advised the timeframe for a return to pre-injury duties and hours depended on the plaintiff’s progress, noting, at that time, he was fit for modified duties.

194     Mr Richard McArthur, orthopaedic surgeon, examined the plaintiff in July 2012.

195     The plaintiff then complained of back pain which involved the entire lumbar spine and was maximal at the upper lumbar level, and radiated approximately to the mid thoracic level.

196     Mr McArthur thought the initial lower back injury may well have been discogenic in origin and the pain had settled, and that the plaintiff’s current presentation was due to a functional disorder.

197     In January 2013, Dr David Fish, consultant occupational and environmental physician, examined the plaintiff for the purposes of an AMA Assessment.

198     The plaintiff then complained of thoracolumbar spine radiating to both loins, worse on the right than left.  He also complained of pain in the arch of both feet and said the pain comes and goes.

199     Dr Fish considered the plaintiff quite possibly suffered a soft tissue injury during the course of his employment but this has not been overtaken by psychogenically mediated pain. He thought it is not possible to state that the plaintiff no longer has any soft tissue injury because of the persistence of the pain.

200     In Dr Fish’s opinion, the plaintiff was best categorised as suffering from persistent lower back symptoms with referred symptoms to the loins and legs, but without clinical evidence of radiculopathy, and positive evidence of psychogenically mediated pain.

201     Dr Michael Baynes, occupational physician, examined the plaintiff in November 2013.

202     The plaintiff then advised he had constant right-sided lower back pain, intermittent on the left.  He reported pain down his right leg, most of the time, particularly when standing.

203     Dr Baynes thought the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic lower back pain in connection with an L4-5 disc prolapse.  He considered there was no objective evidence of radiculopathy on clinical examination and there was evidence of illness behaviour.

204     Dr Baynes then thought the plaintiff was fit for alternative duties of a sedentary type nature, where there was no lifting greater than 5 kilograms, or from below knee height, or above shoulder height.  He thought the plaintiff should be able to frequently rotate his postures. 

205     Dr Baynes considered the plaintiff fit to return to work on a limited hours basis, working 20 to 25 hours a week, with a progressive increase to full-time hours, with work hardening.  He thought the plaintiff could not return to pre-injury duties.

206     Dr Barton, occupational physician, examined the plaintiff on 21 April 2017. 

207     The plaintiff then advised his problems fluctuated, overall, with good and bad days.  He did not believe there had been an improvement of late.  He pointed to the flank area just above the posterior iliac crest, with pain extending into the right buttock down the lateral aspect of the right leg as far as the ankle.  At times, it spread up to the thoracic spine and neck area.

208     On clinical examination, Dr Barton found there was no clear objective evidence of any particular problem.  There were some minor features suggesting a degree of overlay playing a part.  He noted the rather unusual way the plaintiff jerked his body and complained of pain with limited movement, and the non-anatomical sensory changes were of note.

209     Dr Barton would accept the plaintiff may have had a mild soft tissue injury of his back in the early stages, but he believed his current presentation pointed towards a non-physically based problem.  He considered there was some inconsistency between the clinical findings, the radiology, and the plaintiff’s presentation.

210     From a physical point of view, Dr Barton did not believe employment was still a materially contributing factor to any problem, and thought the plaintiff had physically recovered from any minor problem that may have occurred initially.

211     From a physical point of view, Dr Barton could see no particular reason why the plaintiff could not undertake suitable employment.  He noted the plaintiff was currently working as a disability support worker for around 15 to 24 hours a week, and could see no reason why he could not undertake other jobs consistent with his age and vocational experience.  He considered, physically, the prognosis was excellent.

212     Dr Barton provided a supplementary report, having received a further report from Dr Wang, listing the plaintiff’s severe and disabling symptoms.

213     Dr Barton considered Dr Wang’s view was rather simplistic.  He noted there was usually an exceedingly poor correlation between radiological findings and purported symptoms, particularly in compensation cases. 

214     Dr Barton insisted there was a significant non-physical basis for the plaintiff’s complaint and believed that that was supported by a lack of clear radiological evidence of a specific work related injury that would account for these symptoms.  Having had the opportunity to view Dr Wang’s report, Dr Barton still held to the opinions previously expressed.

215     Dr Barton considered the duties detailed in the vocational assessment were within the plaintiff’s capabilities, as were jobs of similar physical requirements and fitting with the plaintiff’s skills.  He could see no reason why the plaintiff could not work full time. 

216     In terms of future treatment, Dr Barton believed the plaintiff needed to be encouraged and managed without relying on opiate narcotics. 

217     Associate Professor Graeme Brazenor, neurosurgeon, examined the plaintiff in October 2016.

218     In terms of history, Mr Brazenor noted the plaintiff could not remember when he first experienced back pain nor could he remember the date he last worked when asked. Mr Brazenor noted the plaintiff had no problem with January 2012, which was the suggested date.  The plaintiff vehemently asserted he had not improved since ceasing work.

219     The plaintiff indicated his current pain running down the entire thoracic and lumbar spine and midline.  He further alleged the pain went off through the right buttock and down the right leg to the sole of the foot, and right great toe at times.  The bottom of both feet were equally uncomfortable if he stood for too long.

220     On examination, the plaintiff was a fit looking man with an absolutely normal gait.  He maintained a fine lumbar lordosis and there was no palpable spasm.

221     Mr Brazenor thought the plaintiff did not describe symptoms consistent with bone fide lumbar spinal pathology and that there were clear signs of malingering during the physical examination.

222     Mr Brazenor thought there was no evidence for the plaintiff having neck symptoms, much less a neck injury, while working for the employer.  Secondly, in terms of the lower back, all of the investigations have been “beautifully normal” for the plaintiff’s age, and Professor Brazenor thought there was no possibility he acquired any back injury while working for the employer.

223     Mr Brazenor thought the plaintiff’s allegation that, with more than four years off work, his pain was no better, was completely unsustainable, and that he gave a very unconvincing account of himself and his allegations of ongoing disability.

224     In short, Mr Brazenor thought there was no diagnosis and there had been no injury.  From the findings of multiple radiological investigations and his physical examination, he thought the plaintiff was fit to return tomorrow, full time, at the duties he did prior to leaving the employer, and to continue those duties through to the normal retiring age.

225     Mr Brazenor was provided with the reports of Dr Wang of 3 May 2017; Dr Barton of 26 April 2017; Mr Kossmann of 10 February 2017, and the progress notes of the Stud Road Medical Clinical, the Thompson Road Medical Clinic and the Park Avenue Medical Centre and the clinical notes of Dr Aronov, the plaintiff’s chiropractor.  These additional records did not change his conclusion in any way.

226     Mr Brazenor reiterated there was no evidence for the plaintiff having neck symptoms, much less a neck injury, while working for the employer.  Second, in terms of the lower back, all investigations have been beautifully normal and there is no possibility the plaintiff had incurred any back injury whatsoever while working for the employer.

227     The plaintiff’s allegation that, in four years off work, his pain was no better, was completely unsustainable and not in any way the template expectation after injury. 

228     Mr Brazenor thought the plaintiff gave a very unconvincing account of himself in his allegations of ongoing disability and did not describe symptoms consistent with bona fide lumbar spinal pathology, and there were clear signs of malingering during the physical examination.

229     Mr Brazenor regarded Mr Kossmann’s report as invalid and disagreed with his diagnosis.  He thought the evidential basis for the postulated diagnosis was lacking.  Mr Kossmann had not examined the radiological injuries and had failed to conduct a proper examination of the plaintiff, and in opining on spinal diagnosis, treatment and, particularly, prognosis, Mr Brazenor believed Mr Kossmann to be speaking well outside the scope of his clinical training and expertise.

230     Mr Brazenor believed Dr Wang could be “censured” for his continuing prescription of addictive analgesic medication, and his only defence could be his lack of specialist expertise in spinal matters.

Claim documentation

231     The plaintiff signed a Claim for Compensation on 20 May 2012, in which he set out the date of injury as 14 April 2011 when he suffered a sore back because of constant lifting.

The Defendant’s vocational evidence

232     There were a range of Nabenet Return to Work Programs during 2011.

233     Nabenet provided an NES Vocational Assessment Report in January 2012, in which the following jobs were set out as suitable, in order of priority, namely receptionist, transport clerk, diversional therapist, tester and electrical engineer.

234     In an NES Refresher and Assessment Report and Plan dated July 2013, Nabenet listed the following suitable jobs in order of priority:

·        Transport clerk - $1,150 per week gross

·        Diversional therapist - $1,060 per week gross

·        Tester - $1,000 per week gross

·        Electrical engineer - $1,841 per week gross; and

·        Receptionist - $850 per week gross.

Overview

235     Whilst the plaintiff’s claim for weekly payments relating to a lumbar injury was accepted, as was his claim pursuant to s98 in relation to this injury,[78] the defendant did not concede there was a compensable injury.

[78]23 April 2013

236     Counsel for the defendant relied primarily on Mr Brazenor’s view that there was no lumbar injury.  Further, if it was accepted the plaintiff injured his back at work, it was submitted any work relationship had ceased, as Dr Baynes opined.[79]

[79]T150

237     In those circumstances, it was submitted there was no an admission of liability which was binding on the defendant as a result of the acceptance of the plaintiff’s earlier applications.[80] 

[80]T151; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66

238     Firstly, I do not accept Professor Brazenor’s extreme view, which is totally at odds with all the other medical evidence. I accept the plaintiff suffered a lumbar injury at work which he reported to the employer. He sought medical treatment in relation thereto, including from the employer’s doctor and following such treatment, his work duties were modified.   

239     Further, Mr Brazenor examined the plaintiff on only the one occasion. His view that, based on the radiological record, there is no possibility the plaintiff hurt his back at work is “illogical” as counsel for the plaintiff submitted.  In any event, he does not appear to have seen the recent standing MRI scan which showed a mild L4-5 disc bulge.[81] 

[81]T171

240     Further, I am not satisfied that the plaintiff’s lumbar condition is no longer work related.  Dr Barton gave no explanation of how he came to this view and when he considered the work involvement had ceased.  As counsel for the plaintiff submitted, this was in the face of the plaintiff’s evidence as to unremitting symptoms from the time of injury.[82]

[82]T171; see also Dr Fish’s comments to this effect

241     It was also submitted on the defendant’s behalf that the plaintiff’s current lumbar condition lacks a an organic basis

242     In Meadows v Lichmore Pty Ltd,[83] Maxwell P set out the two-step manner in which I ought to approach the task in this case:

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[83][2013] VSCA 201 at paragraphs [21]-[22]

243     Counsel for the defendant submitted the medical evidence failed to disentangle the organic from the non-organic components in the plaintiff’s current presentation. It was submitted this was not a case where there is a clear organic explanation for the plaintiff’s injury and symptoms complained of and, therefore, disentangling is required.[84]

[84]T148

244     Whilst it was conceded that Mr McArthur, Dr Barton and Dr Baynes[85] generally accepted there was an initial mild strain or soft tissue injury, but definitely nothing much more, it was submitted that had long since resolved and the plaintiff’s present complaints “are just not explainable”.[86]

[85]See also Dr Fish

[86]T151

245     In addition to the medical evidence as to a non-organic condition, the plaintiff, on his own evidence, has had regular psychological treatment since about September 2015, which continues monthly.  Further, in March 2016, Dr Tolat diagnosed an Adjustment Disorder with Depressed Mood with a differential diagnosis of Depressive Disorder and Chronic Pain Disorder.

246     The plaintiff accepted that in recent times, his depression and mental state have deteriorated and he was to see Dr Tolat the day after the hearing.

247     Counsel for the defendant submitted there was clear evidence of an ongoing psychological or psychiatric injury, and yet there was no medical opinion before the Court to give it more context, and no opinion from the psychologist, who has been treating the plaintiff since September 2015.

248     Counsel for the defendant relied on Mr Brazenor’s view that the radiology demonstrated a beautiful spine and that the plaintiff never suffered an injury to his back and does not currently suffer from any impairment of the lumbar spine.[87]

[87]T147

249     Further, Dr Barton thought there was no evidence of any back problem that was physically based.  Mr McArthur thought the plaintiff’s condition was functional and his complaints were not related to any specific pathology.[88]  In early days, Dr Fish was of the opinion the plaintiff’s pain was psychogenically mediated.[89]

[88]T148

[89]T186

250     Counsel for the plaintiff submitted the plaintiff’s treaters, particularly Dr Wang, who had seen him many dozen times, are best placed to comment on this issue, and more weight should be placed on their opinions rather than medico-legal examiners who have seen the plaintiff once.[90]

[90]T168

251     It was submitted there was more than a respectable body of medical evidence, including Mr Hunt and the Medical Panel suggesting there was an exclusively organic condition. None of the plaintiff’s treaters suggested his pain was psychogenic nor did experienced medico-legal examiners, Mr Kossmann and Mr Brownbill.[91]

[91]T169

252     Whilst Dr Baynes thought the plaintiff was suffering from a chronic pain syndrome, he considered this condition was associated with chronic low back pain in connection with an L4-5 disc prolapse.

253     Further, Dr Tolat considered there were no themes of hopelessness, sadness and frustration, and diagnosed a Severe Adjustment Disorder with Depressed Mood, only noting she would like to consider a differential diagnosis of a Depressive Disorder and Chronic Pain Disorder.[92]

[92]T148

254     In those circumstances, it was submitted this was not a case where there was support for an argument the plaintiff’s perception of pain was in any way amplified by his mental state.[93] The ultimate diagnosis was an Adjustment Disorder with Depressed Mood and there was no evidence the plaintiff was suffering from a Chronic Pain Disorder which brings the Meadows v Lichmore[94] submission to a “grinding halt”.[95]

[93]T169

[94]Supra

[95]T170

255     Whilst there are clearly some non-organic features in the plaintiff’s presentation at times, I accept he has ongoing pain and disability and that there is a good body of medical opinion that his lumbar condition has an organic basis, as counsel for the plaintiff submitted.[96]

[96]T170

256     The issue then is whether the consequences attributable to the physical injury satisfy the “serious” test.[97]

[97]Meadows v Lichmore (supra)

Credit

257     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[98]

“… 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.”

[98](2010) 31 VR 1 at paragraph [12]

258     Counsel for the defendant submitted the plaintiff was an evasive witness who was far from candid.  He rarely addressed the questions directly, particularly in respect of questions or issues he perceived to be significant to his case, and harmful to it.[99]

[99]T42

259     It was submitted that situation could not be explained by any difficulty in terms of communication, as the plaintiff had absolutely no difficulty understanding the questions, but on many, many occasions he deliberately avoided providing frank answers.

260     It was submitted the plaintiff’s credit is particularly relevant in this case in the absence of objective evidence to explain any of his symptoms.  Doctors who provided reports are, in a large part, reliant upon the veracity of the plaintiff’s complaints and the Court ought to be reluctant to accept the veracity of those complaints in the absence of objective supporting evidence.  It was submitted the plaintiff’s credibility was squarely in issue and that was a very significant factor in this case.[100]

[100]T142

261     Counsel for the defendant raised the following matters as to the credit issue:

·        the plaintiff’s evidence that he had attempted to work more than 24 hours per week in his present job when this did not seem to be the case;

·        the plaintiff’s unsatisfactory explanation as to why he asked for Uber to remove his data;

·        the plaintiff’s failure to refer to his Uber driving in his first affidavit;

·        although he mentioned Uber driving to a number of medico-legal examiners,[101] the plaintiff could not explain why he did not mention Uber driving to Mr Brazenor, initially denying they discussed work, then later saying they did;

[101]T144

·        the plaintiff’s failure to tell examiners about his involvement in the business which he ran for a year;

·        the inconsistency between the plaintiff’s treadmill activity and his history that he could not walk for more than 100 metres without an increase in pain;[102]

·        the plaintiff’s evidence about the sale of the business and where the proceeds thereof were disclosed.[103]

[102]T145

[103]T156

262     Counsel for the defendant submitted the plaintiff’s failure to mention the business was a very significant omission, particularly in this case, where the issue is squarely put as to work capacity.[104]  It was submitted it beggars belief to suggest the plaintiff did not think he was working when he owned a business and attended it daily.[105]

[104]T144

[105]T145

263     It was submitted the plaintiff’s credit was particularly relevant in the absence of medical support for his purported level of complaint and symptoms.[106] 

[106]T146

264     Counsel for the plaintiff submitted the plaintiff was a creditworthy, if at times unreliable, witness, having a poor recollection of events.[107] 

[107]T159

265     Any attack relating to the plaintiff’s Uber driving was not valid, because he had disclosed the details thereof and readily produced relevant documents.  He told Mr Kossmann, Mr Brownbill and also Dr Barton about his driving.  It was submitted Mr Brazenor’s comments in this regard “said more about Mr Brazenor than it did about the plaintiff”.[108] 

[108]T159

266     It was submitted a better reading of the email issue is that the plaintiff sent it out in a “fit of pique”, obviously unhappy with Uber, and it should be viewed as a disgruntled letter of resignation.  It was conceded it was certainly unusual asking for all data to be wiped, but that request should be looked at in the context of the plaintiff’s other disclosure of his Uber involvement.[109]  In any event, he mentioned Uber in his second affidavit.[110] 

[109]T160

[110]T161

267     It was submitted that it is understandable why the plaintiff did not mention the business.  It was not paid work and, particularly for an unsophisticated man, it would not be surprising he said “no” to the question “Have you been working?”  Further, there is no reason to suppose the plaintiff’s dealings with the Australian Taxation Office had been anything other than regular.[111]

[111]T161

268     Counsel for the plaintiff denied he prompted the plaintiff on the treadmill issue and submitted the apparent inconsistencies in the plaintiff’s evidence could be reconciled by his evidence about resting whilst using the treadmill.[112]  Also, it was submitted there might have been a degree of misunderstanding because of language issues.[113]

[112]T162

[113]T163

269     Further, it was submitted it was not obvious the plaintiff knew what was being asked at different times.  He repeatedly asked for clarification, not as a way of buying time.[114]  He made every effort to answer questions frankly, and willingly made concessions against his own interest, such as freely conceding he still had some neck pain.[115]

[114]T163

[115]T164

270     In my view, the plaintiff was not a particularly reliable witness.  Although he had difficulty at times communicating his answers because of his speech impairment, generally, I accept that he understood the questions that were being asked.

271     The plaintiff’s explanation about his failure to mention the business was unsatisfactory.  The business was not a minor pursuit but one in which he invested his insurance payout.  Further, as he described, he attended the business most days during the week for two to three hours in the year the business operated. 

272     The plaintiff’s request to remove his data from Uber, whilst somewhat unusual, is not a significant credit issue, given his disclosure of his Uber involvement to a number of medical practitioners and the provision by him of documentation relating to this job.   

Pain

273     The Court of Appeal in Haden Engineering Pty Ltd v McKinnon[116] considered what was involved in a serious injury from a pain and suffering perspective.  As Maxwell P set out,[117] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors) and what the plaintiff does about the pain (for example medication, rest, seeking medical treatment).

[116]Supra

[117]at paragraph [11]

274     The plaintiff continues to suffer chronic low-back pain, radiating to his buttocks and down his right leg in particular, which he rates on average 5 out of 10.  On one or more bad days a week he describes pain that is more extreme.  He still gets pain in his back and feet with prolonged standing.[118]

[118]T120

275     The plaintiff has undergone a range of conservative treatment including physiotherapy and pain management. He continues to require regular painkilling medication for his back complaint.  Despite treatment, there has been no significant improvement in his lumbar condition to date.

276     As a result of persisting back pain, the plaintiff’s sleep continues to be poor, with difficulty going to sleep and staying asleep.

277     The plaintiff reports limited postural tolerances.  He has difficulty driving and walking for extended periods.  He is unable to bend and lift and carry out any physical activity of any significant nature.

278     As counsel for the plaintiff submitted, whilst the plaintiff’s case was attacked on a number of grounds, there was no real attack on the consequences per se – namely what he says about his unremitting pain, the sleep disruption and other consequences such as no longer being able to play soccer.[119]

[119]T172

279     In my view, the major consequence of the plaintiff’s ongoing back pain and associated physical limitations is the inability to do unrestricted manual work and a limitation on the amount of activities he can perform in a lighter, non factory setting such as his present role as a disability worker.

280     As counsel for the defendant conceded, the medical evidence was almost uniform in saying there ought to be restrictions in terms of alternative duties as the plaintiff could not return to heavy work.  However, it was submitted the plaintiff was capable of full-time work with restrictions.[120]

[120]T153

281     I accept, as counsel for the plaintiff submitted, by virtue of his back complaint, the plaintiff is now ruled out of his pre-injury employment and work that requires a similar degree of manual handling.[121]  Further, he would have difficulty with jobs involving prolonged sitting such as Uber driving. 

[121]T165

282     This employment consequence in particular, together with the other consequences referred to above, in my view, constitute a “serious injury” pursuant to the statutory definition.

283     Accordingly, I grant leave to bring proceedings for damages for pain and suffering.

284     I am mindful that the plaintiff has also complained of neck pain, particularly in recent times.

285     In Peak Engineering & Anor v McKenzie,[122] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[122][2014] VSCA 67

286     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[123]

[123]at paragraph [1]

287     Although Mr Brazenor considered the plaintiff had never suffered a neck injury, counsel for the defendant submitted there was a disentangling exercise in relation to the neck when considering the consequences of any organically based lumbar condition.

288     It was submitted there was an increase in neck pain in 2016, so severe the plaintiff could not use his left arm or turn his head in one direction, and he attended emergency twice.[124]  Further, Dr Wang thought the plaintiff may need surgery and referred him for neurosurgical assessment via the public health system and he is waiting for that assessment.[125]

[124]T149

[125]T149

289     It was submitted this situation was inconsistent with the plaintiff’s evidence that his neck is fine and did not affect his ability to work.[126]

[126]T150

290     Counsel for the plaintiff relied on Dr Wang’s note of an attendance in December 2016 where he referred to both the plaintiff’s back and neck and the fact that there have been no attendances in relation to the neck thereafter.  Whilst the plaintiff is on the waiting list for an appointment, in doing so, it was submitted he is only following the advice of his medical practitioners.[127]

[127]T168

291     Counsel for the plaintiff simply submitted the plaintiff's neck pain had largely improved.[128]

[128]T168

292     Whilst I accept the plaintiff does have some ongoing neck pain as he conceded when giving evidence, I am satisfied that his lumbar problems alone result in the work restrictions and other consequences described above.[129] In these circumstances, the supervening event of any neck condition is a matter for the damages trial.[130]

[129]Peak Engineering & Anor v McKenzie (supra)

[130]Acir v Frosster Pty Ltd [2009] VSC 454 per Forrest J at paragraph [178]

293     Further, it appears the plaintiff has had some problem with his knees of recent times.

294     As counsel for the defendant submitted, while the plaintiff deposed his knee was not impacting on his daily activities, he accepted it was an intermittent problem and has not explained the complaints of knee pain in the pain management course and also, referral to Dr Patrick.[131]

[131]T150

295     The plaintiff’s evidence however is that any problems with his knees has largely settled.

296     In any event, having found the lumbar impairment is serious, any knee problems are also a matter for the damages trial.  

Loss of earning capacity

297 Whilst there is not the requirement to carry out the arithmetical calculation under the Act that applies to older workers, a worker under twenty-six must still establish a 40 per cent loss of earning capacity for leave to be granted to bring proceedings for damages for loss of earning capacity.

298     Counsel for the defendant submitted there was no evidence put before the Court as to what the plaintiff could have expected, or would be capable of earning, but for the injury.  While it was conceded the Court in the State of New South Wales v Moss[132] held precise figures were not required, it was submitted that the general position is the Court is provided with evidence of that nature in terms of figures.[133]

[132]Supra

[133]T152

299     It was submitted this was not a case involving an unskilled factory labourer.  The plaintiff was a person who had gone on to obtain qualifications. Arguably, his earning capacity had increased with a higher hourly rate as a care worker than as low grade labourer.[134]

[134]T153

300     Counsel for the defendant submitted it ought not be accepted the plaintiff’s absolute maximum is 25 hours per week.  He has never really tried to work more hours per week.  It is very early stages in a new job that is light and he is qualified to perform, with no lifting, as he confirmed – all characteristics consistent with medical opinion about the work that is suitable for him.[135] 

[135]T153

301     It was submitted the plaintiff’s evidence in respect of his current job was he was getting better at doing it and improving at it and, on balance, it is likely he will be able to increase his hours.  It is very premature and not logical to say he cannot work further hours, especially when he has been in the job only three months.  While he says the problem is pain, he has never tried.[136] 

[136]T157

302     In those circumstances, it was submitted the plaintiff has not been able to provide the Court with any explanation as to why 25 hours is the limit of his capacity.[137]

[137]T157

303     It was submitted Dr Wang “was on the money” when he said that the plaintiff was coping with his workload but he clearly had an incorrect history of 10 hours as the plaintiff was working up to 24 hours a week.  As Dr Wang commented, the only way that you could only see how much the plaintiff could do was for him to keep working and increase his hours gradually and see how he coped.[138]

[138]T158

304     Although it was not the main thrust of the defendant’s submission, if adopting a normal working week of 38 hours, there was a loss of approximately 35 per cent, rather than the 40 per cent, that the plaintiff must establish.[139]

[139]T158

305     Further, it was submitted the plaintiff’s Uber driving clearly showed some capacity for work, and it ought not be accepted his earnings demonstrated in that role is reflective of the full earning capacity.  However, it does show another avenue of work available.[140]

[140]T154

306     It was also submitted the business was clearly evidence of a capacity to work.  Whilst the financial details provided were of very little assistance, it was relevant that the plaintiff attended the business daily for two to three hours, serving customers.  He was clearly working, yet he did not tell anyone this was the case.[141]

[141]T155

307     Further, it was submitted the plaintiff is in the throes of pain management treatment that is likely to increase his work capacity and ability to function.[142]  His treaters still think pain management is a worthwhile exercise.[143]

[142]T154

[143]T156

308     Counsel for the plaintiff submitted the courses completed by the plaintiff were not significant and anything that required a “bit more grunt”, such as electronic engineering, was beyond him.[144]  He also could not do the accountancy course because of his difficulty with prolonged sitting.  He obtained the security job, but could not do it for more than a day because of problems with standing.[145]

[144]T165

[145]T165

309     It was submitted the plaintiff is now limited to what might be described as light physical work, on a part-time basis, where he can alter his posture from time to time.[146]

[146]T166

310     Further, it was submitted the plaintiff had tried very hard to rehabilitate himself and his efforts were impressive, spending a lot of his own money.  He is limited to part-time work where he could earn more per hour, but he is ultimately limited in the range of hours he can work, and there are a range of occupations that are now denied him.[147]

[147]T167

311     As to the permanency issue, it was submitted the plaintiff has had one‑and‑a‑half pain management programs and made very little gain.  The programs really involved learning coping strategies, and one did not expect to see significant gains resulting in any increased level of employability.[148]

[148]T173

312     Whilst I accept that the plaintiff continues to have lumbar pain and is limited in some activities, I am not satisfied that his work restrictions are as great as he claims or that they are permanent. 

313     The plaintiff is clearly not a man limited to work in a heavy factory setting, as his other jobs pre and post injury confirm.

314     Although the plaintiff has some speech difficulties and he described difficulty undertaking his studies due to back pain, he was able to successfully undertake a five-month Certificate IV course requiring attendance two days for more than half a day.  He then obtained his current job in that field.

315     Clearly, having only been in this role for three months, it is very early days and difficult to accept at this stage he is working his maximum of 24 to 25 hours per week.

316     Dr Wang has not commented on this present situation and no medical practitioner is of the view the plaintiff is presently working to his capacity.  There has been no medical analysis at all as to the hours the plaintiff can work and how he is coping with his present workload and what the future holds.

317     When Mr Brownbill saw the plaintiff last month, he thought the plaintiff was likely to be restricted in relation to employment to a “moderate extent” in the foreseeable future, not commenting further on the hours he could work in suitable employment.  Mr Kossmann recommended a vocational assessment but thought the plaintiff would be able to engage in work with appropriate restrictions.

318     Dr Sillcock had a similar view when she examined the plaintiff in late 2013.

319     Further, the plaintiff has shown initiative investing in and setting up the business.

320     Whilst it was not a financial success, the plaintiff explained it failed because he did not have “the knowledge”, rather than a physical inability to do the work involved.

321     Importantly, the plaintiff was able to regularly attend the business for two to three hours per day, running the business and supervising staff, demonstrating the capacity to be a reliable employee.  Whilst he said he was taking medication during that time, he did not complain of increasing problems to his general practitioner during that time.  Dr Wang was not even aware of the plaintiff’s involvement in the business.

322     Whilst there is no guarantee further pain management may improve the plaintiff’s present capacity, that is a possibility and the hope of the medical practitioners involved.

323     In all the circumstances, I am not satisfied that the plaintiff has established a loss of earning capacity of 40 per cent for the foreseeable future.

324     Accordingly, the plaintiff’s application for leave to bring proceedings for damages for loss of earning capacity is dismissed, leave having been granted in relation to pain and suffering.

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