Page v Victorian Roofing Service Pty Ltd
[2013] VCC 1968
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06411
| NORMAN PAGE | Plaintiff |
| v | |
| VICTORIAN ROOFING SERVICE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
CASE MAY BE CITED AS: | Page v Victorian Roofing Service Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1968 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Impairment to the spine – loss of earning capacity only – assessment of “without injury earnings” – worker aged under twenty-six
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Gauci v Winmart Pty Ltd [2012] VCC 53; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; State of New South Wales v Moss [2000] NSWCA 133; Jarvis v Woolworths Ltd [2012] VCC 1329; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Dixon SC with Mr A Coote | Zaparas Lawyers |
| For the Defendant | Ms J Forbes | Herbert Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on 30 June or 1 July 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded at the commencement of the hearing.
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 “permanent serious impairment or loss of a body function”.
4 The impairment of body function relied upon is the lumbar spine.
5 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.
6 In this application, the plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
7 When a worker is 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.
8 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 In the Legislative Assembly on 23 May 2000, The Honourable M M Gould, Minister assisting the Minister for WorkCover, said:
“The three-year pre and post-injury period does not apply in the case of a worker referred to in section 5A(7) of the act or a worker under the age of 26 at the date of injury. The government recognises that apprentices and workers undergoing training for the purpose of becoming qualified and in general terms workers under the age of 26 should not be subject to a six-year period of inquiry of earnings or earning capacity. In the case of such workers, the court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common-law position prevails.”[1]
[1]See the Second Reading Speech (Victoria Hansard), Legislative Assembly, 23 May 2000, page 1169)
10 Judge Millane, in Gauci v Winmart Pty Ltd,[2] said as follows:
“It was common ground that when dealing with a worker under the age of 26 the common law position prevails, such that the Court may have regard to the probable income from personal exertion the plaintiff would have earned but for his injury over his probable earning life, rather than the formula contained in sub-section (38)(f) of the provision. As submitted by counsel on behalf of the plaintiff, the determination of this young worker’s loss of earning capacity involves a discretionary judgment exercised with due regard to the facts.”
[2][2012] VCC 53 at paragraph [35]
11 In Capperv Munday Sales Pty Ltd and Anor,[3] Judge Millane was not persuaded that, having enlivened the common law test as it related to the assessment of loss of earning capacity, Parliament also evinced an intention to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the time of the injury.
[3][2013] VCC 1015
12 Judge Millane set out what is needed is an understanding of the evidence that permits a finding one way or the other about whether the plaintiff has, at the date of hearing, a permanent loss of earning capacity of 40 per cent or more.
13 As to the usual common law position and its application to permanent loss of earning capacity productive of a financial loss of 40 per cent or more, Her Honour was invited by the plaintiff to adopt and apply the various principles articulated by Heydon JA in the State of New South Wales v Moss,[4] a case involving the assessment of loss of earning capacity of a plaintiff injured in a school accident at fourteen years of age.
[4][2000] NSWCA 133 at paragraphs [64], [66], [69], [71], [72], [74] and [87]
14 In October 2012, Judge Brookes conveniently summarised these principles in a leave application, Jarvis v Woolworths Ltd.[5] They were expressed as follows:
[5][2012] VCC 1329
“(i)evidence of past economic loss is some, though not
conclusive, evidence of reduced earning capacity;
(ii)it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [she] 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 [she] 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 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 trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.”[6]
[6]Jarvis v Woolworths Ltd (supra) at paragraph [23]
15 Sub‑section (38)(g) of the Act requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 There is no dispute on the medical evidence as to the plaintiff’s inability to do his pre-injury employment as a result of his back condition. As pain and suffering was conceded, I do not propose to deal in detail with the plaintiff’s evidence as to non-pecuniary loss consequences.
The Plaintiff’s evidence
17 The plaintiff is presently aged twenty-three, having been born in August 1990. He lives with his parents. His partner lives with her parents and their three-year-old son and four-week-old daughter.
18 The plaintiff left school during Year 9 as he wanted to get into physical work. He did some landscaping for a couple of days and then commenced employment with the defendant as an apprentice roof-tiler in May 2006, where his brother also worked. The plaintiff completed his apprenticeship in 2009.
19 During his apprenticeship, the plaintiff attended trade school. He did not really like the bookwork but he liked the manual heavy work and doing things with his hands.
20 The plaintiff worked with the defendant Monday to Friday, usually 8am to 5pm, and in 2010, he was earning approximately $755 gross per week.
21 In the financial year ending 30 June 2010, the plaintiff earned $37,267 gross. He worked a 40 hour week, earning approximately $717 gross per week.
22 In cross-examination, the plaintiff explained that before he was injured, he was looking at being self employed and running his own business, “really working in his own gang like a subcontractor” as his brother had done, being paid $2,000 a week. The plaintiff thought he would do subcontracting work and then maybe go out on his own.
23 On the said date, the plaintiff had lifted a stack of concrete tiles off the elevator on a roof when his foot went through a tile upon which he was standing. The batten underneath stopped him from falling, but he jarred his back in an awkward position with a heavy load on his shoulder, and he felt something give way in his back (“the incident”).
24 That evening, the plaintiff’s back felt stiff and sore. He continued at work as usual over the next few weeks, but his back pain did not go away, and after a few weeks, he began to have a sharp shooting pain down into his right hip, leg and calf.
25 Initial treatment involved attending his general practitioner, Dr Adrianov in August 2010, and a referral for physiotherapy. The plaintiff also obtained some relief from Panadol Osteo.
26 In late 2009, the plaintiff’s back pain became so bad he could not continue working. He returned to his general practitioner, who sent him for an MRI scan on 7 December 2010, which the plaintiff understood, showed a disc prolapse. The plaintiff was prescribed Lyrica and Panadeine Forte, and certified unfit for heavy duties.
27 The plaintiff was referred to a pain specialist, Dr Gassin, in early 2011. He gave the plaintiff an injection in his lumbar spine on 3 May 2011; however, it did not have any effect on the plaintiff’s symptoms.
28 The plaintiff was referred to Professor Bittar, neurosurgeon, whom he saw in May 2011. He recommended surgery to address the disc injury. The plaintiff did not want to take this course and he was scared by surgery. However, he was in agony and his pain was so bad he would cry so he went ahead with the surgery, undergoing an L4‑5 decompression microdiscectomy on 2 August 2011 (“the back surgery”).
29 Subsequent to back surgery, the plaintiff spent several nights in hospital and was given Endone for pain. He was extremely sore for weeks thereafter. He then began physiotherapy with Justin Moar in Frankston, three times a week, and also had hydrotherapy for a few months.
30 Following the back surgery, there was some improvement in the plaintiff’s symptoms, more in his right leg than in his lower back. There has been a 70 to 75 per cent improvement in his leg pain and only a 10 per cent improvement in his back pain.
31 The plaintiff became very down in late 2011 and was diagnosed with depression and prescribed Cymbalta and referred to a psychologist, Victor, by his general practitioner. The plaintiff felt extremely worried, and felt very down about his future prospects.
Current symptoms and treatment
32 In his recent affidavit sworn in October 2013, the plaintiff confirmed he continues to struggle with symptoms of lower back pain. He confirmed his medication regime, and that every now and then he uses a heat-pack which gives him some slight relief.
33 The plaintiff still gets a shooting pain mainly in his back and his right leg.
34 The plaintiff’s back pain is on average about 5 out of 10; when it gets flared up it goes to about 9 out of 10, while bending and it feels like a headache in his back. He knows what he can and cannot do because it has been so long and he has pain management techniques to cope. He was told that these pain management techniques would not make him any worse and he just pulls up sore more than anything. The plaintiff agreed that there was some improvement in his functioning during the pain management program as a result of exercises.
35 The plaintiff’s back has not improved since the incident but it has not “got heaps worse”. He just gets flare ups every now and again that last a couple of days when his back gets really stiff and that is why he still thinks he needs a massage from a physiotherapist.
36 In re-examination, the plaintiff described problems with spasm in his back if sitting for too long. He confirmed difficulties with bending and lifting.
Treatment
37 In cross-examination, the plaintiff described how he was initially on stronger medication like Endone but that knocked him around and made him tired and he did not know what was going on. He had stopped Tramadol before he swore his August 2012 affidavit and was then relying on Panadol Osteo and Voltaren. He stopped the Panadeine Forte not long ago. He takes six Panadol Osteo per day and he takes one or two Voltaren in the morning depending on how he is feeling. He does not get much benefit from fish oil. Panadol Osteo was having the most effect.
38 The plaintiff also takes Cymbalta daily for his depression, and herbal supplements for pain.
39 The plaintiff sees Dr Naidoo in Frankston every two to three months for general checkups or if there is a major flare-up.
40 The plaintiff last had physiotherapy in February 2013, when payments were ceased.
41 In about May 2013, the plaintiff did a six-week pain-management course at St John of God Frankston Rehabilitation Hospital. He did not find much relief from the course, although his overall strength improved. There was some temporary pain relief after seeing the physiotherapist in the course, but the plaintiff often pulled up very sore the next day after the sessions and he felt he had increased back stiffness which felt restricted and painful.
42 It was suggested to the plaintiff that he do a further ten-week course, but funding had been rejected by CGU. The rejection took two months and that was the worst thing the insurer did. Otherwise, the plaintiff thought WorkCover had actually been pretty good, to be honest.
43 On 30 May 2013, the plaintiff had a further MRI scan and soon thereafter, he saw Professor Bittar. Until August this year, the plaintiff had been seeing his psychologist, Victor, once a fortnight, to talk about various issues about not working and his daily pain. Victor has applied for funding for further treatment.
44 In re examination, the plaintiff confirmed that he had cooperated with all medical treatment suggested.
Work future
45 The plaintiff has been told he will never be able to return to physical work as a roof-tiler or in any other manual duties. This was very hard news, as he loved physical outdoor work. He had planned to go into business for himself or with his brother and earn better wages than he earned with the defendant. That dream now seems to have gone forever.
46 The plaintiff would have hoped to be working for himself by the present stage and to have bought his own house with his partner and son, but did not know whether that now would be possible.
47 In cross-examination, the plaintiff described how his early hope was to return to his trade. He did not even want to have surgery. Things just got worse. He was not sure whether Mr Bittar said he would not get back to roof tiling but it was more likely “no” because it was so heavy. The plaintiff tried his hardest to get back because he really wanted to and his boss actually thought he was coming back to work, however, after the back surgery, he was in too much pain.
48 The physiotherapist told the plaintiff he would always have a bad back but he had to gradually try and live with it. The plaintiff realised that he could no longer do his trade when he started with Nabenet, whom he told he liked doing things in the garden.
49 The plaintiff underwent a couple of courses in trying to get work. When he started looking, he did not have any real skills. Maths was the only thing he was ok at but he found it harder as he went through school.
50 The plaintiff had always been someone who worked hard and would love to return to some kind of work in the future. He had hoped to retrain in horticulture; however, he believed he would struggle greatly with obtaining a qualification and did not believe he could do the bending required in most horticulture jobs.
51 The plaintiff is currently on Newstart, having commenced payments in the middle of the year. Since his back surgery, he has not attempted to return to work, but does hope to do so in the future.
52 The plaintiff has been engaging with CRS Frankston once a fortnight for about an hour per session through Newstart and Centrelink, assisting him with potential employment options. When he goes to CRS they look on the computer at other jobs he could do. It has been approved he can work a maximum of 16 to 20 hours a week when he is retrained. The plaintiff thought he would struggle to work 20 hours, but he would try to attempt it, but he thought he had to be retrained.
53 CRS advised the plaintiff that his back was not in the best condition to look for work and he would definitely need retraining. The plaintiff felt his back was just going to be the same. All physiotherapy had been cut out off and he thought he needed this treatment every week.
54 The plaintiff was prepared to try and do a course if he needed to be retrained but he would find studying eight hours a day too hard on him. He had been told about a six-month horticulture course starting in February. He would give a job or a full-time course a go; if he could do it, he would do it.
55 In terms of other suggested jobs, the plaintiff thought there would be too much sitting down working as a truck driver as Nabenet had suggested. His ability to do this job would depend on the amount of driving. He has to get up after 20 or 30 minutes. It was something he could try.
56 If he had a job sitting at a desk answering a phone, the plaintiff would have to get up all the time and he did not know if he could do it. It was very hard and he needed to keep moving round.
57 Restrictions had been suggested to the plaintiff in relation to bending and it was suggested he could alternate his positions moving around.
58 The plaintiff agreed his thoughts had been focussed on horticulture. In late 2012, he rang up a couple of nurseries, and he has always looked in the local paper.
59 The plaintiff did not know anything about using an automatic seeder. He would try anything if he could do it physically.
60 The plaintiff agreed there were some sort of light duties at a nursery but again he would be standing on the spot for too long and he would have to keep moving around. If there was part-time work offered in that regard, he would give it a try. He would be okay working with plants if he could walk around.
61 The plaintiff thought he needed retraining because he did not have any experience in any other line of work. The Nabenet people and CRS had told him it was going to be very hard and Nabenet thought horticulture would be too heavy for him.
62 The plaintiff had not really given any thought to lighter apprenticeships because he understood apprenticeships were all full time. Nothing like that had been mentioned to him by CRS. He agreed he might make enquiries in this regard in the future.
63 The plaintiff thought he would have problems working as a locksmith because of the sitting involved, and he thought lifting would be required. The plaintiff definitely hoped he could be retrained into something more suitable. He had never thought about working in jewellery manufacture.
64 The plaintiff thought he would have problems standing involved in the job of lollypop man. He could do process work if he could move around and it was not heavy. If he could do it, he could try it.
65 The plaintiff thought if he was self employed he would not earn enough and it would be hard because of the physical side of things. Even if he worked part time four hours a day, the next day he would wake up and his back would be really sore. He had considered a lawn mowing business but thought that job was too heavy.
66 Current certification from Dr Naidoo involves no lifting over 10 kilograms.
67 In re examination, the plaintiff described that when he has a flare up, he does some stretches and takes tablets. This situation upsets him and gets him down, and this impacts on his concentration. He thought he would be a very unreliable employee and it would make him really upset, letting down an employer.
The assault
68 In December 2012, the plaintiff was assaulted with a bottle. He had surgery on his head, and understands he had bleeding on the brain. He was told he would have permanent eye problems and he was not supposed to drive at night. He was also told he was going to have permanent ringing in his ears. Other than this, he believed he had made a full recovery from the assault.
69 In cross-examination, the plaintiff agreed the assault was a pretty serious and it caused some blurring of vision and ringing in his left ear which happens every now and again, depending on noise. He is allowed to drive but to try not to drive at night. He has not been given glasses. If it is really sunny his eyes get a bit blurry but he “reckoned [he] healed up fairly good after the assault apart from that”. These injuries did not really bother him on a daily basis. His problem has always been mainly his back.
70 The plaintiff agreed the assault was definitely a setback.
Domestic life
71 The plaintiff continues to feel depressed and concerned by his situation and the future of his family.
72 The plaintiff has problems with prolonged sitting, standing or driving. He struggles to get to sleep at night.
73 The plaintiff still lives with his parents and pays $60 board per week. He cannot afford to live anywhere else. The plaintiff’s younger brother, who is twenty-one, lives at home and the plaintiff has a number of older siblings with whom he is close.
74 The plaintiff sees his four-week old daughter at his partner’s parents’ house daily.
75 The plaintiff’s day consists of stretches, a warm shower, breakfast, taking his medication, reading the paper and he then tries to do some dumbbells which he learnt as part of his pain management. He also does a lot of stretching and half push ups. He might go for a couple of walks over the day and tries to get out, depending on the day, and give the garden a water. He tries walking up to 500 metres; it depends how he feels. He never uses stairs.
76 The plaintiff has to pursue this exercise routine because his back flares up. He has got to get up and get moving after sitting for 20 minutes; even coming to Court he had had to stop twice to get out of the car and have a stretch.
77 The plaintiff agreed he is building up his fitness endurance and he is definitely still working on that with walking and exercise. However, he has gained 17 kilograms and has found it very hard to lose weight because he cannot exercise more extensively. With exercise, his back is not improving but it is not getting worse; it is staying the same. If he just stayed at home pottering around, his back would just get sorer and he would have to try and loosen it up.
78 The plaintiff stopped going to the gym, as he felt it was of little benefit. He went for walks on his own, rather than using a treadmill, and usually walked for about a kilometre with his son and partner. He used light weights at home most days, and he did the exercises which he had learnt in the course.
79 The plaintiff loves gardening and has a vegetable patch, but he does need to take it easy. He had to sell his tinnie as his back was too painful when fishing. The plaintiff is no longer able to enjoy watching Richmond games or having a kick with his friends- an activity he had hoped to share with his children.
80 The plaintiff has a sleep in the afternoon, usually between 3.00pm and 6.00pm because of his injury and the antidepressants – “they all add up”.
Summary of the Plaintiff’s taxation returns
Financial Year Amount Gross 2005-2006 $3,211 2006-2007 $9,361 2007-2008 $24,978 2008-2009 $32,148 2009-2010 $37,267 2010-2011 $33,322
Treaters – the Plaintiff’s current and future work capacity and prognosis
81 Dr Naidoo reported in September 2013 that the pain management program unfortunately had not resulted in significant benefit to the plaintiff to date, and he was currently awaiting approval for a further ten sessions.
82 Dr Naidoo thought, currently, the plaintiff was able to work with restrictions. These included no repetitive bending, no squatting or prolonged sitting, not working in enclosed spaces, and not lifting more than 10 kilograms. The plaintiff should also alternate his posture as per his limits.
83 Dr Naidoo considered the plaintiff needed further rehabilitation in an attempt to get him back to suitable duties. He thought the plaintiff’s prognosis was guarded, as he had had his condition for some time without improvement.
84 Professor Bittar, the plaintiff’s operating neurosurgeon, last reported in October 2013, having last seen the plaintiff in May 2013 when the plaintiff continued to note a significant benefit in terms of his leg pain with 75 per cent improvement, and his back pain around 10 per cent better.
85 The plaintiff then continued to experience significant lower back pain, particularly on flexion of his lumbar spine.
86 Professor Bittar thought the plaintiff most definitely suffered from discogenic lower back pain as a result of the injury to and prolapse of the L4‑5 intervertebral disc. Given the plaintiff’s young age, as well as the nature of his symptoms, he would not recommend further surgery, and suggested conservative treatment.
87 Professor Bittar thought the plaintiff was permanently incapacitated for his pre-injury duties as a roof-tiler in the long term. He considered the plaintiff had a capacity to undertake sedentary work, but would require retraining if he was able to return to the workforce.
88 Professor Bittar thought the plaintiff was likely to continue suffering from significant lower back pain and associated disability into the foreseeable future. He thought the plaintiff’s current treatment should continue indefinitely.
89 If the plaintiff were to return to work on alternate duties, in Professor Bittar’s view, he must avoid repetitive bending, twisting and heavy lifting, as well as prolonged sitting. He should also not be placed in a situation where he is likely to fall or jolt his back, either of which activities might cause a serious deterioration in his condition.
90 Professor Bittar reviewed the NES vocational assessment of 28 February 2012. He confirmed his earlier view that the plaintiff was permanently incapacitated for pre-injury work. Having reviewed the assessment report, he noted the plaintiff’s functional restrictions included sitting for more than 30 minutes, standing for more than 20 minutes, walking for more than 30 minutes, driving for more than 30 minutes, and lifting more than 5 kilograms.
91 Professor Bittar thought the plaintiff’s ability to undertake work as a sales assistant would depend upon the weight of goods he was required to stack and display. These would need to be 5 kilograms or less in order to avoid significantly aggravating his lower back condition.
92 Professor Bittar noted that stocktaking duties needed to be arranged so that the plaintiff did not engage in any significant bending. With the standing tolerance of 30 minutes, the plaintiff would require the opportunity to change postures frequently. If such a position were able to be provided, with the above restrictions being adhered to, he thought the plaintiff would most likely be able to work between four to six hours per day, three to four days a week.
93 Professor Bittar was concerned that many of the activities listed for the role of nursery worker would require the plaintiff to either bend forward or carry objects weighing more than 5 kilograms. Professor Bittar noted the tasks may include the application of pesticides, packaging of plants, and planting seeds and bulbs, which was a role in which he did not believe the plaintiff would be able to work.
94 The suggested position of a garden labourer had a significant physical component, and many of the tasks outlined would require bending and lifting more than 5 kilograms. Professor Bittar did not believe that the plaintiff would be able to work in such a role. In particular, he noted that role appeared to require a significant amount of flexion, and that would be detrimental to the plaintiff’s lumbar spine condition and would exacerbate his symptoms.
95 Work as a gardener would have the same problems as outlined for a garden labourer, and Professor Bittar did not believe the plaintiff would be able to work in such a role.
96 In summary, Professor Bittar thought the only position outlined in the assessment which he believed the plaintiff would be able to undertake in a reliable and consistent fashion was that of a sales assistant, and that would only be possible, however, if a number of fairly strict restrictions were adhered to. In his opinion, the plaintiff would be able to work four to six hours a day, three to four days a week, in a very sedentary role; however, it was difficult to be more specific than that.
97 Dr Gassin reported in May 2012 that he had seen the plaintiff twice in March and May 2011. He diagnosed discogenic low back pain and right sciatica due to a large right L4‑5 disc prolapse impinging on the right L5 nerve root. At the time of his consultations, Dr Gassin thought the plaintiff had no work capacity.
98 The plaintiff attended St John of God Frankston Rehabilitation Hospital in May 2013. There were plans for ten more weeks of rehabilitation. Various physiotherapy outcomes were noted, with some improvement in a number of physical activities between the initial consultation and review in May 2013.
99 At the end of the initial program, the plaintiff reported no change in pain levels, but was slowly becoming more active. His sitting tolerance was 20 minutes. His sleep was disturbed due to pain discomfort, and he took daily naps of one to two hours.
Investigations
100 On 1 August 2011, Professor Bittar organised an MRI scan of the plaintiff’s lumbar spine. It was reported there was a large right paracentral disc protrusion at L4‑5 causing severe central canal stenosis with compression of the thecal sac and all of its nerve roots, particularly the right L5 nerve root in the right subarticular recess.
101 An MRI scan of the plaintiff’s lumbar spine was organised by Dr Naidoo in May 2013. It was reported there were L4‑5 disc changes consistent with degeneration. That was at the operative level. The defect in the posterior annulus was either a tear, or more likely a discectomy scar. There was marked susceptibility artefact in the L4‑5 interspinous space, more than was usually seen, and the reporter suspected there was an inserted interspinous device spacer. It was noted x‑ray correlation would be required.
102 At the L4‑5 level, there was a moderate central canal stenosis with narrowing of the anterolateral margins, particularly so in the left, with apparent flattening of the descending left L5 nerve root.
Medico-legal
103 Mr Kevin King, orthopaedic surgeon, examined the plaintiff in April 2013.
104 Following what Mr King assumed to be classical surgery, he thought there was no doubt the plaintiff was chronically disabled to a moderately severe degree by persistent back pain of organic origin arising from injuries to the disc and associated ligamentous structures at L4‑5 of his spine with some chronic residual nerve root irritation resulting in intermittent right-sided sciatica.
105 Mr King noted the plaintiff would like to get back to his trade, but, in view of the heaviness of it, it was unlikely he would ever be able to do so, and he would have to seek alternative lighter manual work within his physical capacities.
106 Mr King noted that would not be easy for the plaintiff, but at the age of twenty-two it could not be said that he was permanently unfit for any sort of work. He thought, however, the plaintiff was unfit to return to work in his trade, and it would be difficult for him to find suitable light work which did not involve bending, lifting and straining. He thought the plaintiff’s condition had probably stabilised at that stage.
107 In Mr King’s view, if the plaintiff could find suitable unskilled manual work which did not involve bending, lifting and straining, he was obviously well motivated and would certainly try to do it, but the options open to him would be limited in terms of employment.
108 Mr King thought the plaintiff’s prognosis was not good in terms of a return to unskilled manual work.
109 Mr Paul D’Urso, neurosurgeon, examined the plaintiff in February 2013.
110 Mr D’Urso thought the plaintiff did not have a capacity to return to his pre-injury employment or any type of manual or physical employment activity which would require repetitive bending, twisting or lifting. He would place permanent restrictions on the plaintiff’s capacity to lift in excess of 10 kilograms from below the knee or above the shoulder.
111 Mr D’Urso thought the plaintiff should have the ability to ambulate freely in the workforce and avoid sitting and standing postures in excess of an hour, and should not be required to climb a ladder or work at heights.
112 In Mr D’Urso’s view, the plaintiff may have a capacity to perform light employment activity, but this would be heavily dependent on his ability to undergo vocational training and assistance to find suitable employment within restrictions. With suitable vocational training and assistance he believed the plaintiff should be capable of performing light part-time employment at a minimum, and could potentially increase his employment activity to full-time light employment hours.
113 Mr D’Urso noted a return to work would require monitoring of the plaintiff’s progress, and commencement of light and part-time hours in his duties. Mr D’Urso thought the type of employment options available to the plaintiff would be better determined by an occupational physician or rehabilitation consultant with expertise in that area.
114 Mr D’Urso thought it was certainly possible there could be an exacerbation of back pain and sciatic symptoms with a return to light part-time employment. He noted that was somewhat unpredictable, but that would be difficult to determine at the present time.
115 Mr D’Urso thought further surgical intervention would remain an option, depending on the findings of further investigations.
116 Mr D’Urso considered the long-term prognosis for the plaintiff’s condition should be satisfactory. He noted there may be a degree of degenerative progression to be accelerated as a result of the surgery. However, a more accurate prognosis could be determined after post-operative imaging. He thought further surgical intervention may be an option to improve the plaintiff’s functional capacity and clinical outcome. In his view, the plaintiff had persisting disabilities despite surgery.
117 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in June 2013.
118 Mr Brownbill thought the plaintiff in future would need to avoid activities involving heavy lifting, forced spine mobility, repeated bending, or prolonged sitting or standing. He thought the plaintiff would not be able to return to roof-tiling in the future, or manual type employment.
119 Mr Brownbill noted the plaintiff’s limited education to Year 8, lack of computer skills, his activity-related back pain and disc derangement, and considered he would have difficulty pursuing any employment for which he was suited in an ongoing or reliable fashion.
120 Mr Brownbill thought a full assessment of the plaintiff’s work capacity would lie within the province of an occupational physician. He anticipated some pain would continue in a fluctuating manner indefinitely.
121 If the plaintiff attempted a return to work plan, Mr Brownbill thought it should be performed in a graded fashion and under close medical supervision to determine the plaintiff’s responses. The number of hours the plaintiff would be able to work would be dictated by his responses to the employment activity.
122 Mr Brownbill considered there was a real possibility the plaintiff’s back pain would increase during a graduated return to work, with likely inability to perform full-time or part-time light duties, and for that reason, any such attempt should be performed under close medical supervision. He thought the use of analgesics and anti-inflammatory medication, particularly during periods of pain exacerbation, was appropriate.
123 Dr Slesenger, specialist occupational physician, examined the plaintiff in November 2013.
124 Dr Slesenger noted the plaintiff had ongoing lumbar spinal and right radicular symptoms with pain levels up to eight out of ten. There was ongoing use of medication, in particular the current dose of Cymbalta, and the regular use of analgesia.
125 Dr Slesenger also noted evidence of a Mood Disorder and current symptoms of sleep disturbance. The plaintiff had a visual disturbance and tinnitus subsequent to the assault.
126 Dr Slesenger noted the plaintiff’s motivation and active participation in rehabilitation, and his general adherence to treatment regimes.
127 Dr Slesenger was concerned the plaintiff’s condition had not stabilised, and in particular, was concerned with regard to his mental health. He was worried the plaintiff’s depression was under-treated.
128 Having been told the details of the plaintiff’s pre-injury job, Dr Slesenger did not believe he would be fit to return to that employment.
129 Dr Slesenger noted, in regard to the plaintiff’s skill mix, he had limited formal education, leaving school in Year 9, and doing a three-year apprenticeship. He noted the plaintiff’s written literacy skills were limited, and he had limited numeracy skills and computer skills, and his vocational interests lay in outdoor and manual work.
130 Dr Slesenger also noted Mr Brownbill’s report in its references to Ms Schneider’s report and her view as to the plaintiff’s limited capacity to do vocational retraining as being impeded by his reliance on medication for depression and pain, and also references to the limited probability that the plaintiff would succeed in vocational retraining, given his limited experience with further education.
131 Taking into account other factors raised by Ms Schneider, Dr Slesenger thought any future vocational retraining was more likely to be successful if it addressed the plaintiff’s interests and experiences and commenced after review of his physical and mental condition.
132 Dr Slesenger thought the plaintiff would have significant difficulty engaging in both vocational retraining and employment due to unreliability of attendance, as exemplified by his inability to attend the entire ten-week pain-management program; limited exercise tolerance due to fatigue exacerbated by sleep disorder; visual impairment restricting him to daylight driving, and poor concentration due to pain, tinnitus and fatigue.
133 Dr Slesenger thought the plaintiff could do some of the activities of a sales assistant; however, he would have difficulty maintaining concentration and may have some memory difficulties. He was concerned as to the plaintiff’s capacity to use the computer, and whether there would be any manual handling associated with that job.
134 Given the plaintiff’s levels of fatigue and limited driving capacity, Dr Slesenger recommended that he be limited to four hours per day in that role. He was concerned about reliability of the plaintiff’s attendance, given his participation at the pain clinic; therefore, he recommended a graduated return to work, commencing two hours a day, one to two days a week, with a slow increase in hours, up to a maximum twenty hours.
135 Given Ms Schneider’s opinion, Dr Slesenger recommended that the plaintiff seek work in an area where he had an existing interest, like building supplies or horticulture; noting, however, those areas may involve a significant degree of manual handling.
136 Dr Slesenger thought the plaintiff would have similar difficulties with regard to the sustainability of his attendance and also the length of proposed workdays of a nursery person. Suitable employment, if it could be found in that area, should be limited to four hours a day; however, he noted there was a significant amount of manual handling activities with that work, and, whilst the tasks would be broken down into individual components, the plaintiff would have some difficulty with some of the manual handling aspects of bags of soil and watering cans.
137 Further, Dr Slesenger was concerned some of the work would be performed in awkward positions such as being crouched or bent, and most of the work would be performed standing, though the plaintiff may be able to alternate clerical seated work with hands-on horticultural work.
138 Dr Slesenger therefore recommended that if the plaintiff were to seek work in that area, he should try to find it with a big firm with a reasonably large workforce to be able to assist him with manual handling when required. Dr Slesenger would recommend a graduated return to work in line with recommendations for sales assistant work.
139 Dr Slesenger thought the plaintiff would not be able to do the manual handling tasks associated with gardening jobs, in particular loading and unloading of garden equipment, the repetitive bending associated with planting and transplanting flowers and shrubs, as well as laying out lawns. Nor would he be able to perform manual handling tasks associated with cleaning and removing rubbish. Similarly, he would not be able to perform the inherent job demands associated with work as a gardener.
140 Dr Slesenger concluded that as well as the occupations identified, consideration should be given to other lighter tasks. Those tasks should be within the limits of the plaintiff’s capacity to undertake retraining, and should have limited manual handling demands. He thought the plaintiff may be able to consider telephone reception work, and perhaps some call-centre work, where he would be able to work in a seated or standing position and have limited interaction with computer-based programs. He noted, however, this employment would also be affected by the plaintiff’s current levels of pain and concentration, restricted driving capacity, and his fatigue. He also noted the difficulties the plaintiff was likely to encounter in retraining.
141 Dr Davison, occupational physician, examined the plaintiff in August 2013.
142 In his view, the plaintiff presented with chronic pain and restricted movement in the lower back following a discectomy to relieve right L5 radiculopathy. He thought as it was now over two years since the back surgery, the plaintiff should be considered to have reached maximum medical improvement. He thought the prognosis for further and substantial physical recovery was diminishing.
143 Dr Davison thought the plaintiff did not have a capacity for pre-injury duties and would never resume that work. He considered the plaintiff had a partial capacity for employment, subject to the following physical restrictions: graduated hours of work; vary posture regularly by varying between sitting, standing and walking; avoid frequent and/or sustained bending or twisting; and avoid manual handling greater than 10 kilograms in force or weight.
144 In a supplementary report provided by psychiatrist Dr Das in February 2013, he commented on the vocational assessment of November 2012 by NES. He thought those restrictions were mainly in relation to the back injury and the plaintiff would not at present cope well with full-time employment in a new role. He noted the plaintiff had not worked now for two years, and did not have any other skills. There would be thus a requirement for retraining, noting the plaintiff was motivated to start the process as early as possible. He considered a 12‑week NES refresher program which was recommended was an appropriate step to consider.
Vocational assessment
145 Leonie Schneider from Australian Vocational Link Pty Ltd carried out a vocational assessment on 15 October 2012.
146 Ms Schneider concluded the plaintiff had no current work capacity, taking into account the nature of his injury, lack of education, lack of computer skills, lack of transferable work skills, experience for suitable alternative employment, and suitability for vocational training. She considered the plaintiff’s loss of earning capacity, which was total, would last for the foreseeable future.
147 Ms Schneider provided average gross weekly Australian wages for a roof-tiler. In the age bracket twenty to twenty-four, it was $828, and twenty-five to twenty-nine years it was $1,090. For all ages, the average was $1,000.
148 Ms Schneider thought, had the plaintiff been able to continue in his trade with his qualifications, it was likely he could command some $828 gross per week, excluding an additional 33 per cent above-award entitlement (eg $1,101 gross per week) at his present age of twenty-two. She noted indeed as an employee, the plaintiff could earn up to $200 a day or $1,000 a week, plus penalties and entitlements.
149 From a physical perspective, Ms Schneider was not convinced the plaintiff could engage in any of the following occupations: sales assistant, nursery person, garden labourer or gardener. Her view took into account the plaintiff’s heavy medication at that time.
Defendant’s medico-legal
150 The plaintiff was examined by Dr Philip Mutton, occupational physician, in February 2012.
151 Dr Mutton noted the plaintiff was still in the recovery phase, with surgery having taken place in August 2011. He expected improvement over the next six to twelve months. However, the plaintiff would have a permanent restriction in terms of heavy physical manual work.
152 Dr Mutton thought the plaintiff had a current capacity for light to moderate work where he could sit and stand and interchange and lift no more than 5 to 7.5 kilograms, whilst in the early post-operative phase. The plaintiff could not undertake modified pre-injury duties in his trade, and would need to seek out alternative employment.
153 Dr Mutton thought that ultimately the plaintiff would be able to return to alternative duties on a full-time basis. He thought he probably currently had a capacity for half-time, doing light to moderate work. He would have a permanent restriction in terms of a 10‑kilogram weight limitation and avoidance of pushing, pulling, and twisting motions with the lower back. He thought while the plaintiff was continuing to rehabilitate his back, he should undergo retraining, taking account of the permanent restrictions that would be required.
Vocational evidence
154 Joanna Bryant, occupational therapist from CoWork Pty Ltd, provided a vocational assessment and labour-market analysis report on 11 November 2013.
155 Ms Bryant noted medical opinion suggested that although the plaintiff may be unfit for his pre-injury duties, he was capable of suitable or light sedentary work. After considering his vocational profile and the plaintiff’s residual physical capacity, the following occupations were identified as potentially suitable for him: locksmith, jeweller, horticultural tradesperson, nursery hand, products assembler electronics, and mobile food van salesperson.
156 Ms Bryant considered with further training, the plaintiff could consider the jobs of locksmith and jeweller. On the other hand, if he re‑entered the workforce now without further training, he could consider occupations of nursery hand, product assembler electronics, and mobile food salesman.
157 After considering all of the information available to her, including reports from Dr Mutton, Professor Bittar and Dr Naidoo, and the plaintiff’s self-reported activities and physical tolerance, Ms Bryant concluded the plaintiff was capable of suitable work where he had the freedom to adjust his posture and could avoid strenuous repetitive bending, stooping or twisting back movements, heavy physical work and heavy lifting or carrying.
158 Ms Bryant noted during the 105-minute interview, the plaintiff tended to fidget and shift around in his seat. He stood up about half a dozen times, standing for only a couple of minutes each time before resuming his seat. He later mentioned he was more comfortable standing, and demonstrated a sitting tolerance of about 20 minutes.
159 The plaintiff would require NMIT training to be a locksmith. The average gross weekly earnings were $894. Working 20 hours a week at $23.53, the plaintiff would earn $471. Working as a jeweller, having completed a contracted apprenticeship, average gross weekly earnings were $887, $23.34 an hour, and $467 for a 20-hour week.
160 Working as a horticultural tradesperson, the average gross weekly was $672. The average gross hourly rate was $17.68, with earnings of $354 for a 20-hour week. It was noted that the physical demands of that job had been assessed as heavy.
161 The job of product assembler electronics attracted an average gross weekly wage of $894. A 20-hour week at a gross hourly rate of $23.53 totalled $471. The physical demands of that job were described as “medium”.
162 The average gross weekly earnings for a mobile food van salesperson, were $1,057. A 20-hour week at an average gross hourly rate of $27.82 was $556.
Overview
163 There is no dispute the plaintiff suffered a compensable injury to his lumbar spine on the said date which resulted in him ultimately undergoing a discectomy performed by Professor Bittar.
164 It is conceded by the defendant that the pain and suffering consequences of the plaintiff’s lumbar impairment are “serious”.
165 The insurer terminated payment of physiotherapy expenses in February 2013, and in September this year, denied a request the plaintiff undertake a further ten-week pain-management program.
166 Counsel for the defendant conceded the consensus of medical opinion is that the plaintiff is unfit for his trade and unable to undertake any heavy manual work.
167 It was submitted however that the plaintiff has demonstrated a capacity to complete an apprenticeship and learn a trade and it is “a big hurdle to jump to say that he will have, with retraining, a 40 per cent loss of earning capacity”.[7]
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168 It was submitted that a number of vocational aspects have not really been explored and that the plaintiff would be fit for a graduated return to work, and medical opinion is that he should open up his options a bit.
169 Further, if the plaintiff worked full time in a number of jobs that had been suggested, he would not suffer the requisite loss.
170 It was submitted there were skills that could be acquired through an apprenticeship and through TAFE and not everything would involve a full-time apprenticeship.
171 It was ultimately submitted that when one looked at the consistent opinions of occupational physicians, this was not a case where, from a medical point of view, the plaintiff had no capacity for work permanently. From a vocational point of view, there were alternatives that had been identified that fitted within medical restrictions.
172 The plaintiff’s motivation to return to work was also relied upon.
173 Counsel for the plaintiff’s primary submission was that the plaintiff is now totally incapacitated for work as Dr Gassin and Ms Schneider concluded.
174 Alternatively, based on the opinion of treaters Professor Bittar and Dr Naidoo and a number of medico legal examiners, the plaintiff had a permanent loss of earning capacity of 40%.
175 In the plaintiff’s case, I am to have regard to the probable income from personal exertion which he would have earned but for the injury over his probable working life.
176 On the plaintiff’s behalf, it was submitted he would have earned an average of $1,000 from his employment as a qualified roof-tiler but for his injury. That figure was the average of the gross weekly Australian wage of roof-tilers taken from Leonie Schneider’s vocational assessment report of 15 October 2012.
177 It was submitted whilst $1,000 a week was a reasonable figure, of course the plaintiff may well have been earning beyond that had he been able to go with his brother in a subcontracting role.
178 Counsel for the defendant conceded that $1,000 was an appropriate “without injury” earnings figure.
179 It was submitted the plaintiff did not want his own business; he wanted to be a subcontractor. If he earned $2,000 per week in this role, his business expenses needed to be taken into account when considering his earning capacity.
180 I accept that had he not been injured, the plaintiff would have an expectation of earning not less than $52,000 a year, whether as a an employee or subcontractor as a roof-tiler. 60 per cent of that figure is $600 gross per week.
Capacity
181 Whilst the plaintiff is clearly motivated to return to work and prepared to try what is offered to him, I am not satisfied he has the physical capacity to do any of the jobs suggested insofar as they involve prolonged sitting or standing, bending or lifting, manual handling, customer relations and clerical and computer work.
182 The plaintiff continues to experience significant pain and restriction of movement. He still requires an afternoon sleep, because of his pain and medication and he is also somewhat deconditioned.
183 There are limitations in the plaintiff’s driving and he has difficulties with potential attention to detail. Even with his current reduced medication regime I have significant reservations about his capacity to return to work.
184 Jobs as a jewellery-maker or locksmith would require significant training. Work in those fields would involve prolonged postures and fine hand movements, the plaintiff having difficulty with the former and no training in relation to the latter.
185 There are heavy physical demands in a horticulturist role and working in a nursery and to a lesser extent, working in retail. The physical demands of work as a product assembler are rated as medium. There would be problems with standing and sitting, operating a food van.
186 I do not accept the plaintiff has the capacity to undertake a sales job or any job involving interaction with the public, due to his lack of personal skills, his lack of computer and clerical experience, and his limited education, having not completed even Year 9.
187 I accept that at present, no suitable employment has been suggested for the plaintiff that he could cope with due to his ongoing pain and restrictions. He has understandable concerns about his reliability and concentration due to his level of pain.
188 Dr Davison considered there was a partial capacity for employment graduated hours of work with restricted duties and that he thought the prognosis for further substantial physical recovery was diminishing.
189 Mr Brownbill anticipated some pain would continue in a fluctuating manner indefinitely and deferred to an occupational physician. He noted that the number of hours the plaintiff could work would be dictated by his response to employment activity. Mr Brownbill thought there would be an increase in back pain on a return to any sort of work and that should be done under medical supervision.
190 Mr Bittar was looking at very sedentary work and only some contemplation of a sales person. Whilst he suggested the plaintiff had a work capacity, it was only four to six hours, three or four days a week.
191 Dr Das, psychiatrist, noted there would be a requirement for retraining and noted the plaintiff’s motivation to start that process as early as possible.
192 Dr Slesenger, occupational physician thought in November 2013, that the plaintiff would have significant difficulty engaging in both vocational retraining and employment because of unreliability of attendance and limited exercise tolerance due to fatigue exacerbated by sleep disorder. He put significant restrictions on a number of the suggested jobs and thought the plaintiff could work a maximum of twenty hours per week.
193 Dr Mutton, occupational therapist is alone in his optimistic view that the plaintiff would be able after graduated return to work and ultimate full-time duties. Mr D’Urso thought the plaintiff could potentially increase to full time hours on light work.
194 Ms Schneider thought the plaintiff had no work capacity and doubted that he could do nursery jobs because of the heavy work involved. She was concerned about the plaintiff’s lack of adaptability to vocational retraining, noting merely getting to and from study would be difficult.
195 Whilst I accept that the plaintiff is well motivated and intends to return to the workforce, I do not accept the plaintiff has the capacity to work full time as in any of the suggested roles. If he was able to work 20 hours in those jobs, a situation I also do not accept, he would suffer the requisite 40 per cent loss.
Retraining and rehabilitation
196 I do not accept the plaintiff has the capacity to undertake retraining which would ultimately place him in a job where he would earn in excess of approximately $30,000 as counsel for the defendant submitted.
197 I accept the plaintiff is motivated, but due to his pain and physical restrictions, his history of manual work and lack of education and other skills or qualifications, there is no rehabilitation or retraining that would alter the position that he has a permanent loss of earning capacity of 40 per cent. His ability to participate in, let alone complete any retraining is also severely compromised by these factors
198 I accept that the plaintiff’s condition has stabilised and his prognosis is somewhat guarded. Mr D’Urso spoke about a degree of degenerative progression and the possibility of further surgical management.
199 There is no indication from any medical practitioner that the plaintiff’s condition will improve.
200 Therefore, I am satisfied that on a permanent basis, the plaintiff has suffered the requisite loss of 40%.
201 Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity, pain and suffering having already been conceded by the defendant.
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