Pannella v Victorian WorkCover Authority and Pacific

[2010] VCC 479

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-04109

VITTORIO PANNELLA	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	First Defendant
and
PACIFIC BRANDS HOLDINGS PTY LTD	Second Defendant
(ACN 56 098 704 646)

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2010
DATE OF JUDGMENT:	7 May 2010
CASE MAY BE CITED AS:	Pannella v Victorian WorkCover Authority and Pacific Brands Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0479

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(37)(a) – low-back injury – whether “serious” – whether further pecuniary loss test is satisfied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Kennan SC with	Alessi & Kemp
Mr D McIvor
For the Defendants	Mr A W Middleton	Wisewould Mahony
HIS HONOUR:

Introduction

1 By way of Originating Motion dated 1 September 2009, Vittorio Pannella (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended, (“the Act”) to bring common law proceedings to recover damages for a low-back injury suffered by him on or about 20 March 2003 (“the injury”) during the course of his employment with Pacific Brands Holdings Pty Ltd (“the second defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr J Kennan SC, with Mr D McIvor of counsel, and the defendants were represented by Mr A W Middleton of counsel.

4          The application was heard over one day and the following evidence was adduced:

(a)	The plaintiff gave oral evidence and was cross-examined;
(b)	The plaintiff tendered pages 1-5, 7-13 and 19-82 of the of the Plaintiff’s Court Book (“Exhibit 1”);

 (c)  The defendants tendered the following evidence:

(i)      pages 1-58 of the Defendants’ Court Book (“Exhibit A”);

(ii)      Clinical note of the Merlynston Road Medical Clinic dated 6 August 2001 (“Exhibit B”);

(iii)    Medical Certificates from Dr I Bonwick dated from 1 June 2006, through to 3 July 2009 (“Exhibit C”).

Relevant Legal Principles

5          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(16)(a) of the Act).

6          The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. That paragraph reads:

“Serious injury means─

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

The part of the body said to be impaired for the purposes of paragraph (a) is the “low-back”: (see T 3, L6-7).

7          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by him arose out of or in the course or due to the nature of his employment with the second defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” to the plaintiff of the low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious”, that is, “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(b) and (c) of the Act).

The test for “serious” set out in paragraphs (b) and (c) of s.134AB(38) of the
Act is sometimes referred to as “the narrative test”.

8          In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:

(a)	that as at the date of hearing, he has a loss of earning capacity of 40 per cent or more measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and
(b)	that after the date of the hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii) of the Act.

9          In determining the application, the Court:

(a)	must not take into account the psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(d)	must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act, and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]-[92]);

The Issues

10        When asked as to what were the issues, counsel for the defendants stated that in respect of pain and suffering, it is a “threshold issue” and in respect of loss of earning capacity, the issue is that the medical evidence would suggest that the plaintiff “has a capacity for full-time employment”: (see T 3, L19-23).

The Background of the Plaintiff, his Injury and Treatment

11        The plaintiff is a sixty-two-year-old (born 17 June 1947) married man whose wife, Connie, has worked for Qantas Catering for about fourteen years. They have four children, of whom Belinda, aged thirty, lives at home, as do a set of twin girls, Antoinette and Daniela, who are aged seventeen and attend school. Further, a boy, Matthew, has lived with the family for a number of years since his mother (the sister of Connie) died, and some support is obtained from Centrelink in relation to Matthew.

12        The plaintiff accepted that the contents of his two affidavits sworn, respectively, on 29 April 2009 (at page 19 of Exhibit 1, and will be referred to as “the first affidavit”) and on 22 March 2010 (at page 28 of Exhibit 1, and will be referred to as “the second affidavit”) were “correct”: (see T 4, L29).

13        By way of those affidavits, the plaintiff gave the following evidence:

•  He was born in Italy and left school at the age of eleven, after which he worked as a farm labourer. He can read and write in the Italian language and his spoken English is “not too bad” but his ability to read English is “limited”: (see paragraphs 3 and 4 of the first affidavit).

•  He migrated to Australia in 1968 at the age of twenty-one and thereafter worked in the building industry fitting plasterboard for new homes for about a year: (see paragraph 4 of the first affidavit).

•  In or about 1969, he commenced with what was then known as the David Galt Factory in Bakers Road, North Coburg, which manufactured pillows. Over the ensuing years, the name of his employer changed, finally becoming that of the second defendant. The plaintiff remained in employment over the whole of that period, save for about five months in March 1973, when he worked at a sock factory, after which he resumed employment with the second defendant.

•  In 1996, the department in which the plaintiff was working moved to a factory in Nicholson Street, Brunswick.

•  Over the years of his employment with the second defendant, the plaintiff suffered some minor injuries:

(a)	in 1987, he hurt his back when pushing a bale of material and a “muscle strain” was diagnosed and he was back on normal duties after a “couple of weeks”: (see paragraph 9 of the first affidavit);
(b)	in 1998, he made a claim because of neck and shoulder pains but does not think he had “much time off work, if any”: (see paragraph 10 of the first affidavit);
(c)	after having his hearing investigated in 2001, he was found to have noise-induced hearing loss attributable to his employment and was paid about $13,000.00 compensation: (see paragraph 11 of the first affidavit).

• In paragraphs 12, 13 and 14 of the first affidavit, he describes the onset of the subject low-back injury in the following terms:

“12. In March 2003 I was operating a pillow press as part of the packing process. The machine was supposed to force finished pillows down into a box, which would then be sealed, ready for dispatch. The number of pillows to be packed in each box would depend on the size/grade of pillow. The factory produced a range of pillows. Some were bigger, thicker and therefore more luxurious than others.

13. The employer had insisted that we try to reduce costs by increasing the number of pillows per box. I did as I was told, but the press could not cope. After being pushed down into the box by the press, the pillows were springing back up. The boxes could only be sealed if I bent over and forced the pillows back down by hand. That is what I did.

14     The box went into the press at a low level: I kicked it in. After each operation of the press, I would pull the box of pillows out. With the box on the floor, I would then bend over, push the pillows down by hand and seal the box with tape. I then lifted the full box up and placed it on a conveyor. On 20 March 2003 my back became so sore from doing this work, that I had to stop.”

• He experienced pain in his back and legs and could not walk without the aid of a crutch. He attended a local general practitioner, Dr Ian Bonwick, who referred him for physiotherapy and hydrotherapy, which caused some improvement in his condition.

• He returned to work and could not manage his old job, and was given alternative duties of applying price stickers and later operating a machine that made pillow covers. He describes this work as “an easy job” involving “little bending” and mainly monitoring the machine: (see paragraph 16 of the first affidavit).

• In 2006, he was informed by the second defendant that they could no longer provide light work indefinitely and that he might “lose my job” if he did not agree to more arduous and repetitive tasks. The plaintiff deposes he “had a go” but “could not cope”: (see paragraph 17 of the first affidavit).

• He ceased work with the second defendant in June 2006 and lodged a Claim for Compensation dated 16 June 2006. His employment was terminated on 2 August 2006, and he deposes that at the time of his termination he wondered “what I was going to do with myself. I remember bursting into tears. I am not proud of that, but I felt useless”: (see paragraph 23 of the first affidavit).

• He was referred to Ayres Managerial Services by the WorkCover insurer of the second defendant, and in October 2007, through some government scheme, he commenced employment with FP Chassis Pty Ltd, which manufactured chassis for caravans and was owned and managed by the son of the plaintiff.

• He works “15 regular hours”, three hours per day, five days per week, and on some days he might do more; some days do less: (see paragraph 22 of the first affidavit).

• In particular, the plaintiff describes his activities at FP Chassis Pty Ltd in the following terms:

“20. There are about 10 people working for the business. I help- out where I can. I would rather move about than sit or stand in the one place. Walking seems better for my back than standing or sitting for extended periods. I can reach above my head. I can carry things. If an object does not weight more than say 5 kilograms, I can usually lift it without much trouble.

21. At FP Chassis there are a variety of tasks within my capabilities. I use a cutting machine. I fetch and carry smaller parts and fasteners. I assemble couplings. I can handle simple paperwork like delivery dockets. I keep the place clean and tidy. I have been trained to operate the forklift. If I need to move anything heavy, I use the forklift. If one task starts to become too much for me, I leave it and do something else, or go home. Everybody knows I have a bad back and of course, they know I am the father of the boss. No one gives me a hard time; though I suggest no father would relish taking orders from his son. I should hold my tongue, but I do not always do so. I am pleased to have something to do with my time. I am sorry the only job I could find puts me under my son and leads to tension. … .”: (see paragraphs 20 and 21 of the first affidavit).

• He earns $336.00 gross per week working for FP Chassis Pty Ltd.

• He describes the day-to-day consequences of his back injury to include:

- pain in his back and legs everyday;

- pain comes and goes and varies in intensity;

- sitting is more likely to bring it on;

- most mornings he goes for a ten-minute walk in an effort to loosen up

his back which is usually stiff in the morning;

- he performs exercises of a morning on the recommendation of his

physiotherapist but still has difficulties putting on his work boots;

- he had attended physiotherapy until 2003, when he ceased, but he re- commenced when he started employment with FP Chassis Pty Ltd, and attends once every week;

- for his back and leg pain he takes Voltaren and Panadol medication;

- the back pain can vary from a dull ache to a sharp, stabbing pain but sometimes is absent altogether and there are “good days”: (see paragraph 32 of the first affidavit);

- there can be sharp pain that goes down both legs to the back of the knees, predominantly in the right leg, but sometimes also in the left leg;

- he usually goes to bed at 9.30 pm (earlier than he would have prior to the injury) and expects to wake up a couple of times during the night as a result of pain;

- he can drive to the shops and his car is fitted with automatic

transmission and power steering;

- he can mow the lawn when it needs doing, use a ‘Whipper Snipper‘ (with difficulty), sweep the drive and infrequently perform gardening work (whereas before the injury he used to weed the garden fairly regularly);

- he makes less wine than he did prior to the back injury;

- he sees his sex life as being reduced and virtually brought “to an end”

as a result of his back injury;

- he is frustrated that he cannot work as he did prior to the injury.

14        In his second affidavit, the plaintiff deposes:

• That he continues to be employed by FP Chassis Pty Ltd “performing light duties for approximately 15 hours per week”.

• That he continues to suffer from pain, stiffness and limitation of movement in his back and legs as described in his first affidavit.

• He continues to have some physiotherapy and hydrotherapy and his general practitioner, Dr Bonwick, monitors his condition from time to time.

15        In his evidence-in-chief, the plaintiff was asked the following brief questions:

“Q:	I just want to ask you one other thing, are you still currently working for your son?---
A:	Yes, yes.
Q:	And do you hope to continue to work there in the future?---
A:	I hope so, yes.
Q:	And how many hours a week do you work?---
A:	15 hours per week.
Q:	And why is it that you don’t work more?---
A:	Because of pains in my back.”

(see T 5, L8-14)

16        Under cross-examination, the plaintiff gave the following pertinent evidence:

(a)	That prior to the injury on 20 March 2003, that he had had transitory back symptoms in 1987 and 2001 which were short-lived: (see generally T 5-6).
(b)	That the injury on 20 March 2003 was “more severe”: (see T 7, L29-30).
(c)	That he did not lose any time off work after the injury on 20 March 2003 and worked “right through all the time”: (see T 11, L6-11).
(d)	The plaintiff obtained crutches on the day of his injury from a physiotherapist situated next door to Dr Bonwick: (see T 12, L15-19).
(e)	During the period from 20 March 2003 up to his cessation of employment with the second defendant, the plaintiff describes his activities in the following terms:

“Q:	You say you had no time off work from that date of 20th March, you had no time off work?---
A:	No, I did not miss work.
Q:	But you were put onto modified duties, weren’t you?---
A:	Yes, a job where I had to put prices on bags.
Q:	And it also included operating another machine, didn’t it?---
A:	Yes, that was later after about four or five months, I don’t remember exactly but I believe it was about that.
Q:	But from then until you ceased work in August 2006 the duties you performed with Pacific Brands, were those duties certified by Dr Bonwick?---
A:	With the medical certificate.
Q:	And those restrictions were not to lift above 5 kilograms?---
A:	Yes.
Q:	And no repetitive bending or lifting?---
A:	That’s correct.
Q:	You did those duties until August of 2006?---
A:	June 2006.”

(see T 13, L24 – T 14, L8).

(f)	When asked about whether he would have continued working with the second defendant if light duties had continued, the plaintiff answered “possibly I would continue, yes”: (see T 15, L6-8).
(g)	Over the period from March 2003 until June 2006, the plaintiff did not lose any time off work and that work was full-time: (see T 15, L14-19).
(h)	When asked whether it was the intention to increase his hours over time in his son’s business, the plaintiff answered:

“Yes, but I was not able to continue any more because of the

pains that I was getting.”

(see T 16, L15-17).

(i)      The plaintiff accepted that he told Mr Kevin King, who examined him in June 2009, that he worked up to a total of “15 to 20 hours a week”: (see T 16, L31 – T 17, L1).

(j) When asked about recreational and social activities, the plaintiff gave this evidence:

“Q:	Is it correct to say that apart from your vegetable garden you do basically everything you were able to do around the house perhaps more carefully?---
A:	Less than ….
Q:	Perhaps more carefully and perhaps slower than you did before you had this injury in 2003?---
A:	I do things less and slower.”

(see T 19, L14-19)

(k) In relation to whether or not there are more hours available to the plaintiff at his son’s factory, the following evidence was given:

“Q:	Is there work available if you could do it at your son’s factory to do more hours?---
A:	The work is there but I would not be able to do it because of the pains I have in my back, after three hours I really feel bad.”

(see T 21, L29 – T 20, L1).

(l)	The plaintiff takes Voltaren tablets as and when he needs them, and sometimes Panadol. The plaintiff estimated that he may take tablets once or twice a week, sometimes even three times a week: (see T 20, L4-17).
(m)	Other than the medications, he receives no further treatment from Dr Bonwick and has never seen a specialist for treatment: (see T 20, L20- 24).
(n)	The plaintiff does go shopping with his wife sometimes and goes out socially sometimes and visits friends and family although “not much”: (see T 24, L14-16).
(o)	In relation to any restrictions on his day-to-day activities, the plaintiff was asked the following series of questions:

“Q:	Is there anything you can think of in either work or day-to- day activities or social or recreational things that you can’t do now that you did before 20th March 2003 , not that you can do with restrictions but you can’t actually do it?---
A:	Well I can’t lift weights, and those things I just don’t do.
Q:	That’s heavy weight over 5 kilograms?---
A:	Heavy weight, yes.
Q:	Anything else?---
A:	Bending, sometimes when I have to do a job I have to bend, if I’m bending, if I know that I have got to do a job that requires bending I just don’t do it.”

(see T 24, L17-27).

17        In re-examination, the plaintiff was asked, in part:

“Q:	If you were able to, would you work longer hours?---
A:	I would be happy to work more but I suffer pain and I didn’t do it, I would like to do it.”

(see T 26, L4-6).

18        The following reports from the general practitioner, Dr Ian Bonwick, have been tendered:

(a)	Report dated 13 April 2007 (see page 32 of Exhibit 1);
(b)	Report dated 3 July 2008 (see page 34 of Exhibit 1);
(c)	Report dated 12 May 2009 (see page 35 of Exhibit 1);
(d)	Report dated 25 February 2010 (see page 37 of Exhibit 1);
(e)	Report dated 26 March 2010 (see page 38 of Exhibit 1).

19        Dr Bonwick initially examined the plaintiff on 27 March 2003 and obtained a history that the plaintiff had injured his back at work pressing down pillows. Examination at that time was consistent with a “lumbar strain”.

20        Dr Bonwick arranged for the plaintiff to undergo plain x-rays on 1 April 2003 and they were reported as follows:

“Minor spondylitic changes with mild anterior lipping at the lower three lumbar disc space levels. Mild narrowing of the L5-S1 disc. Minor degenerative changes in the lower apophyseal joints. Otherwise no significant abnormality noted.”

(see page 58 of Exhibit 1).

21        The plaintiff was treated with Voltaren and referred for physiotherapy treatment.

22        The plaintiff also underwent a CT scan on 2 April 2003, which concluded:

“Mild degenerative changes. There is a small left posterio-lateral herniation of the L5-S1 disc with light pressure effect to the left S1 nerve root.”

(see page 31 of Exhibit 1)

23        Dr Bonwick reports that the pain “improved” and the plaintiff was able to continue at work on alternative duties and was –

“… able to manage his alternative duties despite some ongoing back pain

particularly occurring if he tried to do any physical work.”
(see page 32 of Exhibit 1).

24        Dr Bonwick also reports that, because the second defendant required the plaintiff to perform his normal duties, he gave the plaintiff (who was very keen to continue work), a final certificate to return to full duties on 22 May 2006. However, the plaintiff returned to Dr Bonwick on 1 June 2006 complaining that he could not cope with his pre-injury duties. Dr Bonwick notes, in his report dated 13 April 2007:

“•	Mr Pannella has a chronic low back injury in the nature of a lumbar strain and L5-S 1 disc prolapse.
•	In my opinion this injury was a direct result of the incident described, above in March 2003 and his on-going symptoms are directly caused by that injury which has not settled.
•	I have read the Vocational Assessment report dated 28.12.2006 and while I am unable to comment on Mr Pannella’s fitness for a specific, presumably hypothetical, job position, I believe he would be fit to do light manual work within the restrictions outlined on his WorkCover certificates and above, similar to his previous alternative duties at Pacific Brands which he was able to perform until May 2006.
•	If suitable employment duties were found he could return to work.
•	I believe he requires no specific treatment apart from intermittent anti- inflammatory and analgesic medication on an as required basis.”

(see page 33 of Exhibit 1).

25        In his report dated 3 July 2008 (a time after which the plaintiff had commenced working with his son), Dr Bonwick notes:

“In relation to his hours of work, his ongoing certificates put no restrictions on these. I am happy for him to undertake duties consistent with the long term restrictions as outlined on the certificates.”

(see page 34 of Exhibit 1).

26        In his report dated 12 May 2009, Dr Bonwick notes that the “condition” of the plaintiff had “largely unchanged” and that his WorkCover Certificates certified him fit for alternative duties involving –

“no lifting greater than 5kg and no repetitive bending or lifting.”
(see page 35 of Exhibit 1).

27        Dr Bonwick noted, over various examinations, that the plaintiff was only performing 15 hours’ work per week.

28        In his report dated 26 March 2010, Dr Bonwick reports that the “condition” of the plaintiff had “remained largely unchanged” and WorkCover Certificates continue to be issued in the same form as previously.

29        Dr Bonwick referred the plaintiff to physiotherapy undertaken by Mr Jonathan Harris and Mr Mark Jans at Vaucluse Physiotherapy Work Strong. The plaintiff has had physiotherapy for various periods since his injury, and in a report dated 4 February 2010, Mr Harris notes:

“I think Mr Pannella is probably working at his physical capacity, maybe over it. At even 15 hours a week he is pulling up sore and still has acute-on-chronic episodes of lower back pain.”

(see page 53 of Exhibit 1).

Medico-Legal Reports

30        The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the orthopaedic surgeon, Mr Kevin King, on or about 19 June 2009 and on or about 11 March 2010.

31        In his first report dated 19 June 2009 (see page 4 of Exhibit 1), Mr King notes that the plaintiff performs –

“… light metal working tasks for three hours a day for up to a total of 15- 20 hours a week, at his own rate and avoiding any lifting and bending. … .”

(see page 56 of Exhibit 1).

32        Mr King was of the opinion that the plaintiff had suffered an “acute injury to one or more of his lumbar discs and associated ligamentous structures” as a result of the incident on 20 March 2003: (see page 58 of Exhibit 1).

33        Further, Mr King states:

“On the basis of the clear history I have obtained today and combining this with my clinical findings and x-ray observations, it appears that this man is chronically disabled to a moderately severe degree by injuries sustained to his lower back at the time of a lifting strain at work. He (sic) condition is stabilised, he can manage his present light part time job without significant problems, and he should be able to continue on such light, part time duties for the foreseeable future. On the other hand he is permanently disabled from returning to his old full time job at a production line — of the sort that he did for over 30 years in the same factory.

… .”
(see page 59 of Exhibit 1).

34        In a second report dated 11 March 2010 (see page 61 of Exhibit 1), Mr King confirms his earlier views that the plaintiff is fit for light part-time work but is –

“… permanently unfit to go back to full time busy active factory work and in this respect has been left with a serious long term impairment of function.”

(see page 63 of Exhibit 1).

35        The second defendant (or its agent) arranged for the plaintiff to be medico- legally examined by the following doctors:

(a)	Dr David Barton, a consultant occupational physician, on 22 December 2006 and 3 April 2008;
(b)	Mr Clive Jones, an orthopaedic surgeon, on 31 July 2008 and 18 February 2010;
(c)	Mr Michael Shannon, an orthopaedic surgeon, on 17 March 2009 and 3 March 2010.

36        When initially examined by Dr Barton, the plaintiff had ceased work with the second defendant but had yet to commence employment with his son. Essentially, Dr Barton was of the opinion that the employment of the plaintiff was an “aggravating factor” to longstanding, age-related degenerative problems: (see page 3 of Exhibit A). In particular, Dr Barton states:

“He has a theoretical capacity to undertake lighter or restricted duties. He himself acknowledged that he would be able to undertake the work that he was doing prior to being laid off. I do not believe he would be considered fit for normal and unrestricted duties.”

(see page 3 of Exhibit A).

37        In a later report dated 4 April 2008 (see page 6 of Exhibit A), Dr Barton noted that the worker had returned to work some four months earlier and he was doing about 15 hours of light work per week and that the plaintiff “did not believe that he could increase his hours”: (see page 2 of Exhibit A). Dr Barton was of the opinion that:

“Clearly he has a current work capacity. From a physical perspective I

see no reason why he could not increase to full-time work.”

(see page 3 of Exhibit A).

38        When initially examined by Mr Clive Jones, a history was obtained from the plaintiff that he was working 15 hours at his son’s business. Mr Jones was of the opinion that the symptoms were consistent with spinal disc degeneration and his restriction is “mild to moderate rather than severe”: (see page 11 of Exhibit A). In particular, in his report dated 11 August 2008, Mr Jones states:

“He does have a current work capacity. Up until the time of his termination at Pacific Brands, he was employed full-time on suitable duties, and retains a capacity of this nature. He is now employed in his son’s business. I understand the restrictions are on repeated bending and lifting in excess of five kilograms. These restrictions appear to be reasonable.”

(see page 11 of Exhibit A).

39        When seen on 18 February 2010, Mr Jones notes that the plaintiff reports that his back symptoms were “about the same”, possibly “a little worse” but no major change.

40        In relation to capacity, Mr Jones, in his report dated 7 March 2010, states, in part:

“Mr. Panella (sic) has a light work capacity. He works three hours each day driving a forklift and cutting steel. I understand he has no inclination to extend his hours past this, or whether his son’s business could accommodate full-time work.

. . .

The current hours he is putting in appear reasonable for a sixty-three year old overweight man, with a low back problem. I believe when he reaches pensionable age, Mr. Panella (sic) is likely to cease work completely.”

(see page 15 of Exhibit A).

41        The initial examination by Mr Shannon, on 17 March 2009, was essentially for an assessment under the AMA Guidelines. When seen on 3 March 2010, Mr Shannon noted the following history:

• The plaintiff continued to work part-time 3 hours a day, five days a week;

• The plaintiff feels his back is a bit worse and his walking distance is reduced;

• He can drive a car for half an hour;

• He takes Voltaren when the pain is bad but this is usually only “three or four times a month”;

• He currently attends physiotherapy once or twice a week and also goes to hydrotherapy at the same venue once a week.

42        In his report dated 5 March 2010, Mr Shannon states, in part:

“He has ongoing symptoms consistent with lumbar disc degeneration and

he has some referred symptoms in his right lower limb.

The evidence for radiculopathy on this occasion is somewhat equivocal because all of his reflexes are really inactive.

. . .

Essentially however, I think that he is suffering from mechanical back pain with possible mild right sided nerve root irritation and I note that his CT Scan in April 2003 was reported to show a small left sided lumbosacral disc herniation which is not entirely consistent with his current symptoms.

. . .

As he presents, I do not think that Mr Panella (sic) is fit for his former occupation to the extent that this involves prolonged or repetitive bending or heavy lifting.

He is fit for and performing suitable light work.

There is no particular reason why he could not work longer hours insofar as his back is concerned and I think that his back condition has stabilised at a tolerable level.

…. .”

(see pages 22-23 of Exhibit A).

The Earnings of the Plaintiff

43        In his first affidavit, the plaintiff deposes that he is earning $336.00 gross per week with FP Chassis Pty Ltd. On such a wage rate, his annualized earnings would be $17,472.00. Such weekly rate does not appear to be in dispute: (see counsel for the defendants at T 37).

44        At page 10 of Exhibit 1, is set out details of the plaintiff’s income tax returns (including WorkCover payments). Such information reveals what the plaintiff was earning prior to his injury in March 2003 and what he earned with the second defendant in his alternative employment, up to his cessation in August 2006. At paragraph 28 of his first affidavit, the plaintiff deposes:

“Before my injury in 2003 I commonly earned overtime by working Saturday mornings. After my injury I did very little overtime. I also saw my status and pay rate down-graded. As I could no longer perform my old job, I went from a level 3 machine operator to a level 2. The loss of overtime and the down-grading did not cause an obvious reduction in income. To some extent they were offset by a pay rise awarded to Pacific Brands workers. I nevertheless earned less than I would have been paid, but for my injury.”

(see page 24 of Exhibit 1).

Analysis of the Evidence

45        I find the plaintiff to be essentially a witness of truth and as several doctors observed, “straightforward” in his presentation of his evidence: (see Dr Barton at page 3 of Exhibit A; see Mr Jones at pages 11 and 15 of Exhibit A, and Mr King, at pages 58 and 63 of Exhibit 1).

46        I am satisfied that the plaintiff suffered a low-back injury on or about 20 March 2003 during the course of his employment with the second defendant. The nature of such injury is probably an aggravation of pre-existing degenerative changes and some degree of lumbosacral disc injury as evidenced by the CT scan. Given the length of time that the injury has persisted, and indeed the various medical opinions, I am satisfied that the low-back injury has resulted in some permanent impairment giving rise to physical consequences.

47        The first and most patently obvious consequence is that the back injury suffered by the plaintiff in March 2003 prevents him engaging in the type of work he did over his many years of employment with the second defendant up to the date of that injury. Furthermore, as a corollary of that, although he was given, and performed, alternative light duties up until June 2006, his employment effectively ended, because he could not resume his normal pre- injury duties. I consider it of some consequence that a worker who has worked for the same employer for some thirty-seven years (essentially his only job in Australia) is forced to give away that employment and that type of work because of such injury. As stated by the plaintiff, he burst into tears on being terminated in 2006. Furthermore, it must be borne in mind that the alternative employment obtained by the plaintiff with his son has given rise to some family tensions.

48        The cross-examination of the plaintiff established that there is perhaps no one significant recreational or social activity which has been destroyed by the low- back injury. The impression I obtained was that most day-to-day activities of the plaintiff are more limited (for example, less gardening) and when such activities are performed, they are performed at a slower and careful pace.

49        The plaintiff does require physiotherapy and hydrotherapy to control his back symptoms and also Voltaren, and to a lesser extent Panadol medication as the need arises. He is awoken a couple of times a night as a result of the pain and his sexual relationship with his wife has suffered as a result of ongoing back problems. Although, as noted, no particular one activity has been destroyed, the pain and restrictions of his back injury affect most aspects of his life.

50        On balance, I find that the consequences to the plaintiff of his low-back impairment in relation to “pain and suffering” and/or “loss of earning capacity” “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(b) and (c) of the Act).

51        Accordingly, I find that the plaintiff has discharged his onus in satisfying the narrative test in relation to the pain and suffering and loss of earning capacity consequences.

52        The next issue is whether the plaintiff has also discharged his onus in satisfying s.134AB(38)(e) of the Act.

53        Paragraph (e)(i) requires the plaintiff to establish that, as at the date of the hearing of the application, he “has a loss of earning capacity … of 40 per centum or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:

(a)	the income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b)	the income that the plaintiff was earning or was capable of earning (during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred) (“without injury earnings”).

54        In both cases, the income is limited to gross income from personal exertion and is to be annualized.

55        Paragraph (e)(ii) requires the plaintiff to establish that he will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more”.

56        In relation to the “without injury earnings”, I find, consistent with the parties, such earnings to be $37,500,00 (see T 51, L22-25). Sixty per centum of the “without injury earnings” amounts to $22,500.00.

57        It is agreed between the parties that the plaintiff is currently earning $336.00 gross per week. Such sum annualizes to $17,472.00 which, of course, is less than the sum of $22,500.00.

58        Counsel for the plaintiff submitted that I should accept the evidence of the plaintiff that he is incapable of performing any more than 15 hours per week at his son’s business and, accordingly, has discharged his onus pursuant to s.134AB(38)(e)(i) of the Act. Against this, counsel for the defendants submits that the current earnings of the plaintiff do not reflect what he is “capable of earning in suitable employment at the date of the hearing”.

59        Before resolving this issue, I make the following comments:

(a)

There was no suggestion by either party, and appropriately so, that the employment undertaken by the plaintiff with the second defendant from March 2003 until August 2006 (the date of his termination) and indeed the employment undertaken by the plaintiff at his son’s business is not “suitable employment” as discussed in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230. Both parties seemingly accept (and appropriately so, in my view) that in both cases, the plaintiff was performing appropriate alternative work.

(b)

Current earnings of $336.00 per week gross for 15 hours’ work would amount to $22.40 per hour.

60        After carefully analysing all of the evidence, I am not persuaded that the plaintiff discharges his onus pursuant to s.134AB(38)(e)(i) of the Act. I make such finding on the following basis:

(a) The plaintiff has clearly demonstrated a capacity for alternative full-time employment from March 2003 to June 2006 (when the plaintiff ceased employment with the second defendant). Dr Bonwick has been the treating general practitioner of the plaintiff at all material times from the injury to date. Over this period of time, he has provided medical certificates (see Exhibit C, which took certificates up to 3 July 2009) which although certifying “no lifting greater than 5 kilograms, no repetitive lifting or bending”, do not limit the number of hours the plaintiff can work

There is no material in the reports from the general practitioner to indicate that the condition of the plaintiff has deteriorated over time to the extent that he is now only fit for a limited number of hours a week. As I interpret the medical reports of Dr Bonwick, he was well aware that the plaintiff was performing about 15 hours of work but did not consider that he was limited to such number of hours.

(b) The occupational physician, Dr Barton considered the plaintiff to have a capacity for full-time work as at 3 April 2008, and the orthopaedic surgeon, Mr Shannon, is of the opinion, as at 3 March 2010, that the plaintiff could increase his hours of work.

The orthopaedic surgeon, Mr Clive Jones, when he first examined the plaintiff on 31 July 2008, was of the opinion that the plaintiff retained a capacity to perform full-time work on “suitable duties”. When seen on 18 February 2010, Mr Jones comments that the number of hours that the plaintiff is now performing appears reasonable, which would arguably suggest that he is of the opinion that the 15 hours may be appropriate, but he does note that the plaintiff “has no inclination to extend his hours past this”.

The orthopaedic surgeon, Mr King, although making it clear that the plaintiff is incapable of performing his pre-injury employment, and noting that he continues light, part-time work, does not expressly state an opinion as to the limit of the plaintiff’s capacity for employment in terms of hours, but I accept inferentially it is open to accept that he is of the opinion that the plaintiff is limited to the 15 to 20 hours a week about which he obtained a history from the plaintiff. I do note that even if one accepted that the plaintiff was capable of performing 20 hours’ work a week (at $22.40 per hour), the annualized amount is $23,296.00, which is greater than 60 per cent of the ”without injury earnings”. Of course, the defendants would maintain that the plaintiff is capable of performing more than 20 hours’ work per week.

61        Accordingly, given the demonstrated capacity of the plaintiff to perform full- time alternative employment, the opinion of the general practitioner, and the opinions of Dr Barton, Mr Shannon, and to a lesser extent Mr Jones, I find that the plaintiff has a capacity to perform work earning more than $22,500 per annum. To the extent that this finding is in conflict with the evidence of the physiotherapist and/or Mr King, I prefer the evidence of the other doctors in the context of what the worker has demonstrated in the past and the absence of any evidence to suggest a relevant deterioration in his condition.

62        In making such a finding, I have taken into account the evidence of the plaintiff that he asserts that he is unable to perform any more than 15 hours’ work per week. Indeed, such evidence is important given my findings as to his credit. It is to be stressed that in assessing the capacity to earn means the physical capacity to earn income in “suitable employment”, whether or not a job is available (see State of Victoria v Rattray [2006] VSCA 145 at paragraph 16). In my view, the weight of evidence is against the plaintiff on this issue and it must be borne in mind that other factors may well be playing a role in how many hours the plaintiff feels that he can work – his age, obesity and working in his son’s factory with its attendant tensions.

Conclusions

63 Pursuant to s.134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of pain and suffering in respect to a low-back injury suffered on or about 23 March 2003.

64        I will hear the parties on the question of costs.

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