Paraskevas v Apps Electrics Pty Ltd
[2018] VCC 1393
•6 September 2018
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05057
| ANDREAS PARASKEVAS | Plaintiff |
| v | |
| APPS ELECTRICS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 24 July 2018 | |
DATE OF JUDGMENT: | 6 September 2018 | |
CASE MAY BE CITED AS: | PARASKEVAS v APPS ELECTRICS PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1393 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Application for leave to commence proceedings for pain and suffering and loss of earning capacity damages – injury to the spine - paragraphs (a) and (c) of the definition of ‘serious injury’– suitable employment – work capacity
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622, Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, HarrisvDJD Earthmoving Pty Ltd [2016] VSCA 188, Richter v Driscoll [2016] VSCA 142, Philmac Pty Ltd v Asti (1980) 26 SASR 213, Cardiff Corporationv Hall [1911] 1 KB 1009
Judgment: Plaintiff’s application for leave under paragraph (a) granted.
Plaintiff’s application for leave under paragraph (c) dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. O’Dwyer SC with Ms V. McLeod (4 & 5 July) Ms M. Tsikaris (24 July) | GPZ Pty Lawyers |
| For the Defendant | Mr A. Middleton | Hall and Wilcox Lawyers |
HER HONOUR:
Introduction
1 This is an application made under section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) (the Act) for leave to bring proceedings for the recovery of pain and suffering and pecuniary loss damages in respect to permanent serious impairment or loss of function of the spine due to work-related injury sustained on 29 July 2011 by the applicant, Andreas Paraskevas, in employment as an electrician with the defendant.
2 The application was made under paragraphs (a) and (c) of the definition of ‘serious injury’, although the Court was informed from the outset that the focus of the leave application was on the consequences of physical injury to the spine rather than the consequences of any psychological/psychiatric injury.
3 Under paragraph (a) of the definition of ‘serious injury’ the plaintiff was required to prove “permanent serious impairment or loss of a body function” (in this case the spine), on the balance of probabilities. Whereas, under paragraph (c) of the definition, the plaintiff was required to prove “permanent severe mental or permanent severe behavioural disturbance or disorder”.
4 “Permanent” in the context of the provision required the applicant to demonstrate impairment that is “likely to last for the foreseeable future”.[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622, [34].
5 Section 134AB(38)(c) of the Act provides that the pain and suffering and loss of earning capacity consequences of the injury to the plaintiff’s spine, when judged by comparison with other cases in the range of possible impairments or loss of a body function, must be fairly described as being more than “significant” or “marked”, and as being at least “very considerable”.
6 With the claim made under paragraph (c), the test applied under section 134AB(38)(d) is the same, save that the pain and suffering and loss of earning capacity consequence of injury to the psyche, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, must be fairly described as being more than serious to the extent of being severe. Under the Act, ‘severe’ connotes something of stronger force than ‘serious’.
7 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e)(i) and (ii) by establishing a permanent loss of earning capacity productive of financial loss of 40% or more. The Act further required the plaintiff to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[2]
[2] Sections 134AB(19)(b) and (38)(g).
8 Essentially, the plaintiff was required to show that, by reason of work-related injury, and taking into account his physical/mental capacity for suitable employment post-injury and his attempts to participate in rehabilitation and training, he no longer has the capacity for employment which, if exercised, would result in him earning more than 60% of his pre-injury earnings as determined in accordance with section 134AB(38)(f).
9 In this case, following adjournment to allow the defendant to consider the impact on the figure for earning from personal exertion, if any, of entitlements accruing under an Enterprise Bargaining Agreement, the parties agreed the sum of $105,925 gross per annum represented the appropriate without injury earnings figure. The sum of $63,555 gross per annum (or $1,222 gross per week) represents 60% of the last mentioned figure.
10 If the plaintiff satisfies the loss of earning capacity requirements under section 134AB in respect to injury under paragraph (a) or under paragraph (c), as the case may be, he is entitled leave to issue proceedings for both his pecuniary loss and pain and suffering damages, without further determination of the pain and suffering component of the application.
The evidence called and tendered
11 The parties were represented by counsel. Mr O’Dwyer SC with Ms McLeod and (later) Ms Tsikaris appeared on behalf of the plaintiff. Mr Middleton appeared on behalf of the defendant.
12 The plaintiff attested to the accuracy of two affidavits sworn by him on 23 May 2017 and 7 June 2018 respectively.[3] He was cross examined.
[3] Exhibit P1, Plaintiff's Court Book (PCB) 18-34 inclusive.
13 Extracts were tendered from Court Books prepared on behalf of the plaintiff and the defendant. The extracts from the Plaintiff’s Court Book comprised: Particulars of Injury, copies of the results of radiological investigation of the spine obtained on various dates between 10 August 2011 and 15 July 2015; correspondence and/or reports from treating medical professionals; reports prepared by medico-legal and Vocational Assessment specialists; an extract from the Emergency Department records of Epworth HealthCare dated 6 June 2014; copy Medical Panel Certificate of Opinion dated 28 December 2016; copy Certificate of Capacity dated 16 September 2014; and copy Centrelink Employment Separation Certificate.
14 Material tendered by the plaintiff from the Defendant’s Court Book comprised: two reports of occupational physician Dr Slesenger dated 5 September 2014 and 31 August 2015 respectively; a report of another occupational physician, Dr Wilson, dated 6 January 2015; and copy Medical Panel Opinion dated 28 December 2016.[4]
[4] Exhibits P2, P3 and P4 respectively.
15 Extracts tendered by the defendant from the Defendant’s Court Book comprised: two Vocational Assessment reports prepared by assessors from Recovre dated 18 April 2018 and 27 June 2018 respectively; and reports of medico-legal specialists, including additional reports from Dr Slesenger dated 26 January 2016 and 30 March 2016 respectively.[5]
[5] Exhibit D1, Defendant's Court Book (DCB).
16 The defendant also tendered extracts from the clinical notes of the Moonee Ponds Medical Centre spanning the period 10 June 2010 to 1 November 2017; and, from the Plaintiff’s Court Book, an extract from the Form A document that specified the injury or injuries relied upon.[6]
[6] Exhibits D2 and D3 respectively.
17 My reasons for granting the application for leave under paragraph (a) only of the definition of serious injury are contained in the paragraphs that follow.
Background matters
18 Unless otherwise indicated, background and other historical information drawn from the plaintiff’s affidavit, and from his evidence at hearing, was uncontroversial.
19 The 33-year-old plaintiff’s marriage ended in early 2017. The plaintiff has since established a relationship with another woman, with whom he lives for most of the week.
20 After completing year 12, in 2004 the plaintiff commenced an electrical apprenticeship. On 10 August 2007 the apprenticeship was transferred to the defendant employer, Appselec Pty Ltd. Within six months of commencing employment with the defendant, the plaintiff qualified as a Grade A Electrician.
21 The defendant is a commercial electrical company, which supplies electrical fit outs for mainly commercial building sites. The plaintiff’s work apparently took him to commercial and industrial sites found in the metropolitan and Geelong areas. He was a team leader and leading hand, and supervised between five and 10 tradespeople and apprentices.
22 The plaintiff said he worked in construction and new installations, which involved unloading tools and materials at worksites; examining plans, wiring diagrams and specifications to determine work sequence and methods of operation; measuring and laying out installation reference points and cutting and connecting wiring and cabling to terminals and connectors; using electrical and electronic test instruments to trace and diagnose faults; using elevated work platforms and ladders and climbing into confined spaces including lift shafts; and installing all electrical and lighting equipment, switchboards and power leads and terminals.
The injury, initial treatment and return to work - 2011
23 On 29 July 2011, the plaintiff was working at a site for construction of a multistorey apartment building in Melbourne at which the defendant had been contracted to perform electrical work. At about 7:45 AM, as he was walking along a designated pathway, a piece of timber fell through a void and struck the plaintiff on the head, knocking him to the ground (the incident). In the first affidavit, the plaintiff recalled he was wearing a hard hat when struck. The plaintiff further recalled being “dazed immediately” but was unable to recall whether or not he was also knocked unconscious.[7]
Investigation and treatment to 14 August 2011
[7] PCB 20.
24 Following treatment by a first aid officer, the plaintiff was taken to the Bridge Street Medical Clinic in Port Melbourne where he was treated until 15 August 2011 by general practitioners, who were not his usual doctors. During this period the plaintiff was mainly treated by general practitioner Dr Milton Harris.
25 In a report dated 12 November 2015, and addressed to the plaintiff’s solicitor, Dr Harris relevantly reported as follows:[8]
[8] PCB 64-66.
· On 29 July 2011, initial complaint of head and neck pain, the latter radiating down to the mid part of the upper back as well as headache.
· A past history of having fully recovered from “a similar episode in 2009”, and having some ongoing lower back issues.
· Examination results that included complaint of mild tenderness over the neck vertebrae and neck stiffness. Clinically the plaintiff demonstrated a 90% range of movement with all neck movements.
· X-ray results for the cervical and thoracic spines, which reportedly showed no abnormalities.
· Initial treatment comprising anti-inflammatory and pain killing medication and a course of physiotherapy.
· Certification for an initial period off work until 1 August 2011.
· Review on six further dates between 1 August and 15 August 2011 inclusive when the plaintiff was discharged as fit for work.
· On 1 August 2011, complaint of increased neck stiffness and headache, and of pain in the mid back radiating to the left shoulder. Physiotherapy continued. The plaintiff was certified unfit for work until 3 August 2011.
· On 3 August 2011, complaint of recurrent headaches. The plaintiff was referred for MRI investigation of the cervical spine.
· On 4 August 2011, the plaintiff reported feeling 50% better before undergoing some physiotherapy. The plaintiff was certified unfit for work until 8 August 2011. It was agreed that, if the plaintiff felt no better, he would attend for the MRI scan booked for 9 August 2011.
· On 9 August 2011, the plaintiff reported slow improvement and that his headaches were getting better. It was decided to proceed with the MRI scan. He was certified unfit for work until 11 August 2011.
· MRI scan result obtained on 10 August 2011 revealed what was described as “subtle central protrusion at C5/6” which was non-compressive.[9] Absent signs or symptoms of nerve related pain, Dr Harris concluded the minor disc bulging seen at the C5/6 level may well have been attributable to a normal type variant.
[9] PCB 37.
· As from 14 August 2011, the plaintiff was certified fit to return to alternative duties with restrictions on lifting more than 5 kgs and a requirement that he avoid overhead work. The plaintiff requested a return to normal duties from 15 August 2011.
· A diagnosis of a soft tissue injury to the plaintiff’s neck and upper back as a result of the incident.
26 As is apparent from my summary of Dr Harris’ report, among other things, he recorded a history of some ongoing lower back issues but did not also record complaint of symptoms or pain in the lower spine attributable to the incident.
Past medical history
27 General practitioner Dr Nickolas Loizou treated the plaintiff between June 2010 and 18 March 2015 at the Moonee Ponds Medical Centre. Among other things, Dr Loizou’s records essentially confirmed the plaintiff’s sworn account of a past medical history, which had not involved treatment for ongoing back pain or, for that matter, treatment of any sequel to an earlier head injury. For the reasons noted below, I concluded Dr Loizou’s record made more likely than not Dr Harris’ summary of the plaintiff’s medical history was inaccurate.
28 In mid-2010 the plaintiff underwent a thyroidectomy for cystic papillary carcinoma of the thyroid gland. The plaintiff continues to take medication, Thyroxin, and when needed he attends for a check-up with a treating general practitioner since childhood, Dr Knowles. This doctor is located in Keilor Downs.
29 The impression I formed from the evidence was that the plaintiff had commenced attending the Moonee Ponds Medical Centre in 2010 because this clinic was closer to home. In 2010 the plaintiff was investigated and treated for mid-back and abdominal pain. The clinical notes from the Moonee Ponds Medical Centre relevantly confirm the plaintiff’s statement to the effect that Dr Loizou attributed this cluster of symptoms to a likely episode of irritable bowel syndrome.[10]
[10] PCB 19 and Exhibit D2 comprising clinical notes made between 2 June 2010 and 25 August 2010 inclusive.
30 In 2010 the plaintiff fractured his left clavicle when he fell off a motorbike. He recalled taking approximately one month off work as a result.
31 Under cross-examination, the plaintiff disputed the accuracy of Dr Harris’ summary of his past history and denied any past history of head injury or lower back problems. The plaintiff said Dr Knowles had not treated him for back problems before or since the incident. The plaintiff could not explain why Dr Knowles, but not Dr Loizou, had been recorded as the treating doctor on the plaintiff’s admission to hospital in mid-2014 in the treatment of back pain.
32 The defendant was critical of the failure to call evidence from, for instance, Dr Knowles, ostensibly to help explain the entry in Dr Harris’ report about pre-existing back problems. I was not satisfied this was necessary where, as in this case, there is no medical record of treatment at the plaintiff’s local clinic, the Moonee Ponds Medical Centre; and where the record made by Dr Harris represents an isolated and uninformative summary in a single report received from a doctor who treated the plaintiff over a short and discrete period of time.
Change of general practitioner from 15 August 2011
33 On 15 August 2011, the plaintiff presented to Dr Loizou for treatment of work-related back injury. Following Dr Loizou’s retirement, another general practitioner, Dr Hamid Assaf from the same clinic, assumed the plaintiff’s treatment until the present time.
34 On 15 August 2011, Dr Loizou recorded a history of immediate severe pain in the knape (of the neck) associated with headache, with severe stiffness and pain the next day. On presentation, whilst the plaintiff reported improvement in stiffness and pain, he complained of ongoing severe headaches and severe neck/shoulder girdle pain and stiffness. The plaintiff informed his doctor he had noticed sharp pain in the left scapular area as he dressed that morning.[11]
[11] Report dated 11 November 2015 and clinical notes, PCB 56 and Exhibit D2.
35 The plaintiff deposes Dr Loizou treated his symptoms with analgesics, anti-inflammatory “agents”, rest and physiotherapy, although he ceased physiotherapy because this made him feel worse.[12]
[12] PCB 22.
36 The plaintiff returned to modified duties on reduced hours from about 29 August 2011. He resumed full-time duties and hours a few months later.
Complaint of pain and symptoms – whole of back
37 In the first affidavit the plaintiff indirectly addressed the issue of contemporaneous complaint of back problems in the following statement:[13]
21. I attended the Bridge Street Clinic on a number of occasions until 15 August 2011 as I had ongoing pain in my neck, between my shoulder blades, my head and back. I felt that I was not able to walk properly. I was also experiencing severe stiffness in my neck and shoulder area as well as having the pain, I also had severe headaches.
[13] PCB 21. See for example, the report of orthopaedic surgeon, Mr Kossmann, PCB 86. But compare with the
report of occupational physician, Dr Bloom, DCB 58 and of neurosurgeon, Mr Brownbill, PCB 129.
38 In the years since the incident, from time to time, some health professionals and medico-legal specialists have likely understood the onset of low back pain occurred relatively contemporaneously to the incident. For instance, in correspondence/reports sent from late 2014 onwards some doctors have recorded histories involving ‘enduring’, or ‘constant’, or ‘immediate’ back pain following the incident.[14]
[14] See general practitioner, Dr Glassenbury, PCB 45; osteopath, Dr King, PCB 67; orthopaedic surgeon, Mr
Cunningham, PCB 75a; rehabilitation and pain management specialist, Mr Clayton Thomas, DCB 112;
occupational physician, Mr Bloom, DCB 58; and neurosurgeon, Mr Brownbill, PCB 129.
39 Whilst the focus of the initial complaint was on pain/symptoms affecting the neck and upper back, the clinical notes for August and September 2011 nonetheless indicate the plaintiff attended with complaint of pain affecting the whole back and headaches in association with overhead and/or heavy lifting.[15]
[15] As for example clinical notes for 22 and 29 August 2011, and 5 and 6 September 2011.
40 For instance, on 22 August 2011, and again on 5 September 2011, the plaintiff presented with complaint of pain/soreness over the whole of the back (“experiences pain over the whole back” and “his whole back was v sore”[16]).
[16] Exhibit D2.
41 Under cross-examination, the plaintiff insisted he had suffered pain affecting the whole of his back, although the upper back was, in his words: “quite severe and excruciating”.[17]
[17] Transcript (TN) 26-27.
42 Responses given to later questions, however, indicate the plaintiff has no current recollection of having experienced pain in the low back (in the area of the belt line) in August/September 2011,[18] nor could he recall an incident recorded in the clinical notes, on 5 September 2011 by Dr Loizou, and on 6 September 2011 by another doctor, Dr Yates. Each doctor recorded an incident in which the plaintiff was reportedly struck on the head at work in early September 2011, this time by a steel bar. The entry made on each date is extracted below:[19]
[18] TN 31.
[19] Exhibit D2.
… At work but getting a lot of pain by the end of his 5 hrs. 4 days ago another object fell on his head againn (sic) at work – steel bar ~ 3 kgm – it obviously did not help!! That night he had headaches ++, his whole back was v sore stiff. 2 days ago he went to CAlder Park as a spectator – his whole back was v sore – he had to lie in the grass to ease the pain.
And
Works as an electrician/leading hand in construction and was hit on the head by large and heavy piece of timber. Has had a sequelae of headaches, migraines, sore and tight neck and upper back tension and tight muscles sinc (sic) the incident with an additional recent hit on the head with a bar of reo. Not able to do any extra hours at work or partake in any of his usual out of work activities.
43 Under cross-examination, the plaintiff accepted he may have been struck on the head on or about early September 2011. Assuming for the moment a further work-related incident did occur, the evidence did not indicate that an incident in early September 2011 had given rise to any medical sequel. In this regard I note the following:
· The content of the Moonee Ponds Medical Centre notes kept subsequent to 6 September 2011;
· The referral during September 2011 to pain management specialist, Dr Robert Gassin, for treatment of widespread back pain following the incident;
· Dr Loizou’s written report dated 11 November 2015;
· The letter addressed by Dr Gassin to Dr Loizou on 19 September 2011, which incidentally also records relatively contemporaneous complaint of low back pain and symptoms. [20]
[20] PCB 75 (t)-(u).
44 The plaintiff submits, and I accept, Dr Gassin’s letter puts beyond doubt the proposition low back pain was among the complaints made to doctors in the period following the incident.
45 Dr Gassin’s letter to Dr Loizou relevantly indicated he had access to the earliest radiological investigations of the cervical and thoracic spines. This letter records the following matters:
· A report of having been struck on the top of the head by a heavy structural timber beam causing immediate pain that increased in intensity over the next few days.
· Report of significant neck, upper back and low back pain associated with migraine type headaches since the incident.
· Improvement in headaches after ceasing hands-on physiotherapy to his neck.
· Overall improvement in his condition and neck pain in the week preceding the examination, although the plaintiff reported widespread back pain which increased with activity.
· The plaintiff was then working alternative days on modified duties, although there were problems in maintaining restrictions on work-related activities given that he was working on building sites.
· Clinical examination which revealed restriction of movement of the lower back and cervical spine – “a somewhat decreased range of lumbar spine movement in all planes”; tentative movements in the cervical spine due to neck and upper back pain; and some decreased range of cervical movement especially in rotation bilaterally.
· Dr Gassin’s view (suspicion) the incident had caused “significant jarring of the neck and back structures”.
· The plaintiff was advised the injury could take up to 6 months to gradually improve and resolve.
· Recommendations that the plaintiff continue physiotherapy involving more active modalities, and that he continue with modified duties with a gradual increase in the hours worked and the duties performed over the coming weeks.
· Review in 5 weeks if the plaintiff’s symptoms remained significant. There is no evidence the plaintiff’s condition was reviewed by this doctor.
46 Based on the evidence of both the plaintiff and Dr Loizou, in the months that followed, whilst the plaintiff reported reduction in symptoms, he also reported exacerbations of neck and back pain and symptoms when performing his normal work duties as an electrician:
From the plaintiff’s first affidavit -
24. Over the first few months following the accident, the severe symptoms settled to a degree and for a while I managed my full-time work. However I was susceptible to exacerbations from doing my normal work and I would experience severe migraine type headaches associated with neck and back pain as well as stiffness. I was more prone to these exacerbations with overhead work and heavy lifting. Nevertheless I managed to persevere with work and restricted my sport and leisure activities to try to accommodate my symptoms. I wanted to keep working as I had big plans for my future and I didn’t want to be seen as a complainer or troublemaker. I also had the odd day off due to pain.[21]
From the doctor’s report –
Over the next few months, his acute symptoms settled to a moderate degree and for a while he was able to remain gainfully employed. However, it soon became quite obvious that he was quite prone to easy exacerbations comprising severe migrainous type headaches associated with severe neck and back pain as well as stiffness. He discovered he was more prone to these exacerbations after heavy use of his arms especially with overhead work as well as heavy lifting. Nonetheless, he managed to keep such exacerbations to a minimum by avoiding such use/work. In addition, he had to restrict his sporting and leisure activities to accommodate his back something which he found quite challenging as he was normally a very outdoors oriented individual. …[22]
[21] PCB 22.
[22] PCB 56.
47 The plaintiff’s condition following the incident also restricted his ability to engage in sporting and leisure activities, such that he could no longer kick a football, or ride his bike, or restore an old motorbike to ride, or go camping and bike riding on weekends with friends and so on.
48 Further radiological investigations have identified pathology in the spine, which includes a fracture of the thoracic spine.
49 From late 2013 onwards the plaintiff experienced a significant deterioration in his back condition. There followed a lengthy period off work during 2014 in association with further investigation and treatment of reportedly severe back pain.
50 In mid-2014, the plaintiff gave up drift car racing and sold cars and car parts he said he used in racing. Apparently, drift car racing and the restoration of and collection of parts for cars and bikes were activities the plaintiff had been passionate about from a very young age.[23]
[23] PCB 26-27 and 32.
51 The plaintiff returned to alternative and restricted alternative duties in the months preceding retrenchment on 30 April 2015. The plaintiff attributes retrenchment from long-standing employment as an Electrician to his inability to return to normal duties. He has not since returned to gainful employment. The plaintiff deposes he could not reliably turn up to work every day and perform a full day’s work, although he states he is not completely disabled.[24]
[24] PCB 33.
The issues for determination
Compensable injury to the spine
52 The plaintiff submits the thrust of the medical evidence when considered as a whole indicates compensable, likely unresolved, soft tissue injury to the spine and its structures including a crush fracture at the T8 level.
53 The defendant submits the incident likely caused compensable soft tissue injury to the plaintiff’s cervical and thoracic spines, the effects of which have since ceased.
Causation
54 The defendant contests any work-related injury to the lumbar spine or fracture at the T8 level as a result of the incident. If, as claimed, the applicant is incapacitated for work due to back pain, the defendant submits this incapacity likely flows from the effects of non-work-related lower back disc degeneration.
55 As to the lower back, as my discussion of the medical records of Dr Loizou and of Dr Gassin has already shown, clinical and medical records from August and September 2011 relevantly record complaint of symptoms involving the whole of the back and/or the lower back.[25] As to the thoracic spine, most treating and medico-legal doctors have accepted the incident as a cause of the fracture revealed by radiological investigation within a year of the incident.
[25] See clinical notes for September 2011, Exhibit D2 and Dr Gassin's report, PCB 75(t).
56 The medico-legal evidence of neurosurgeon Dr Brazenor was central to the defendant’s case the incident had not also caused injury to the lumbar spine or, for that matter, any fracture injury to the thoracic spine.[26] Dr Brazenor assessed the plaintiff on 7 September 2017. In doing so, he analysed and commented on various medical, radiological and vocational materials. The latter materials did not include copies of Dr Loizou’s clinical notes or a copy of Dr Gassin’s letter from September 2011. As mentioned, Dr Gassin’s letter recorded complaint of “significant neck, upper back and low back pain with associated severe migraine type headaches” since the incident. Whilst the defendant objected to the late addition of this letter to the Plaintiff’s Court Book, Mr Middleton was unable to identify any specific prejudice to the defendant in granting leave, as I did, to add the document to Exhibit P1.
[26] DCB 42-56.
57 Dr Brazenor concluded the plaintiff may have suffered temporary injury to cervical or thoracic spine facet joints. The only restrictions he placed on the plaintiff’s employment arose in connection with the low back condition, which Dr Brazenor opined was not causally linked the incident.
58 In view of radiological evidence of a L5/S1 lumbar disc protrusion, Dr Brazenor recommended the plaintiff not undertake any job requiring repeated bending at the waist, accessing levels less than 600 mm above floor or ground, or jobs requiring vigorous pushing/pulling movements as in the manoeuvring of heavy-laden trolleys. Irrespective of the cause or causes of changes identified in the low back, at the very least, Dr Brazenor’s evidence helped establish that the plaintiff has what in employment is commonly called: ‘a light work back’.
59 However, as the following extract from his report shows, Dr Brazenor clearly considered organic factors were not mediating the signs and the symptoms with which the plaintiff currently presented, including the reported need to use a walking stick from time to time:[27]
Mr Paraskevas’ performance on physical examination was clearly functional, and not accompanied by a single objective sign of injury to any part of his body. Indeed his neck movements observed during the interview were of normal range (as indeed they were when formally tested), and this would not be the case if any cervical injury incurred 29 July 2011 had not resolved completely. If the blow from the plank had injured any part of Mr Paraskevas’ spine it would have included the cervical spine.
[27] DCB 53.
60 The plaintiff submits, and I accept, given Dr Gassin’s record of complaint of lower back pain in September 2011, Dr Brazenor’s assumption there had been no complaint prior to May 2014 was wrong. I will discuss the import of this finding and other aspects of this specialist’s report in due course.
Compensable injury to the psyche
61 The plaintiff relies on recent medico-legal psychiatric assessment by Associate Prof Paoletti in March 2018.[28] Associate Prof Paoletti has diagnosed depressive and anxiety disorders to which he said the circumstances of the incident and the physical problems experienced since then have been a significant contributing factor. The psychiatrist offered a qualified view of the plaintiff’s psychological capacity for work. He opined the plaintiff had no current psychological capacity for work, yet foresaw a return to work if the plaintiff underwent psychiatric treatment and a suitable job placement was found for him.
[28] PCB 113.
62 I will discuss the import of this finding and other aspects of this specialist’s report in due course.
Disentanglement
63 In response to a query from me during closing submissions, Mr Middleton said the defendant relied on nine clinical notes from the Moonee Ponds Medical Centre clinical records as examples of exacerbations, including non-work-related exacerbations, of the plaintiff’s back condition.
64 Of the nine clinical notes, only eight related to attendances after the incident: in August and September 2011, June 2012, May and August 2014, March 2015 and August 2016.
65 Having since considered the content of the clinical notes in context, some clearly relate to attendances recording reports of an escalation in symptoms in association with an activity, such as an exacerbation of symptoms reported on 18 August 2014 after dancing at a wedding party.[29] Others, such as the entry made for 13 May 2014, appear to record reported escalations in symptoms due to work-related activities in the months preceding the attendance and an admission to the Epworth Hospital in early June 2014 in the treatment of severe back pain. The latter hospital admission was apparently covered by WorkCover.
[29] Exhibit D2.
66 Somewhat belatedly, following completion of the Plaintiff’s closing submissions, Mr Middleton noted a disentanglement issue in respect to Dr Loizou’s discussion in his report of the effect of ‘exacerbations’ of symptoms from work-related activities.[30] The passage is extracted below:[31]
…. Concurrently, he continued attending with myself, physiotherapists, masseurs and others for treatment of such exacerbations and initially, he chose not to put a claim with WorkCover as he was hoping his condition would fully settle in a short time. Unfortunately, the exacerbations proved severe and ongoing especially as his work as an electrician involved heavy lifting and overhead work. It therefore became necessary for him to submit a WorkCover claim in early 2014.
[30] TN 146-147.
[31] PCB 56.
67 As I understood Mr Middleton’s submission, if the plaintiff intended to rely on the doctor’s evidence about severe and ongoing exacerbations he was required to disentangle the consequences of these from the injury, the subject of this proceeding.
68 The application for leave was based on a single episode of work-related injury in July 2011. Cross-examination about work-related exacerbations of symptoms was directed to questioning the plaintiff about the clinical notes made on 5 September and 6 September 2011. As earlier mentioned, among other things, these entries recorded complaint of a further blow to the head at work.
69 In context, repeated references in the general practitioner’s report to ‘exacerbations’ appear to consistently describe complaint of fluctuations in spinal pain and symptoms, which the plaintiff largely ascribed to his work activities after returning to work from the latter part of 2011.
70 Other clinical notes kept from the latter part of 2013, however, help place in context the likely origin of the doctor’s reference to submission of a WorkCover claim in early 2014. For instance, the clinical notes kept by Drs Loizou and Yates commencing from 21 August 2013 refer to various attendances either seeking a medical certificate for headaches and neck and shoulder girdle pain and/or treatment to help mobilise the plaintiff’s neck, upper back and mid and lower thoracic spine. On 2 April 2014, Dr Loizou recorded receipt of a letter from the insurer questioning a gap in “bills” relating to the neck/back injury in July 2011. This entry, and a further entry made on 23 April 2014, relevantly state:[32]
[32] Exhibit D2.
See letter from Insurer. They are questioning the gap in bills wrt neck/back injury (July 2011). Pt continued to have symptoms (neck/back pain/stiffness, severe headaches) esp with overhead work/heavy weights etc but he tried to ignore it/avoided such use as much as possible – esp at work as an electrician. However, this use is unavoidable esp in his trade and he would get severe exacerbations. He attended elsewhere for massage therapy. His symptoms have more recently become more intolerable and he made the decision to seek treatment via his claim.
And on 23 April 2014 –
in response to letter from Insurer 5/3/14, I prepared report to better explain the situation…
71 At hearing the plaintiff said: “No” when asked whether “something” had occurred at home or at work that led to a deterioration in his condition from 2013/2014.[33]
[33] TN 40-41.
72 I was not satisfied a disentanglement issue with respect to claimed exacerbations had been established.
73 In summary, other than activity-related fluctuations in spinal symptoms in association with performance of work duties in the period prior to being retrenched in April 2015, I did not understand from the doctor’s written report his patient had suffered further discrete injury or injuries to his spine.
74 The impression I formed on the evidence as a whole was that, following the incident, the plaintiff persevered with work because, as the histories recorded show, he was well motivated to do so. Shortly after the incident, the plaintiff returned to normal duties, which he said he managed by avoiding activities at home and at work that caused symptoms to flare-up and by improvising at work. An example of the latter can be found in the report of the defendant’s psychiatrist, Associate Prof Doherty. He was informed by the plaintiff in October 2015, the plaintiff had tried his best to stay at work. This included purchasing a stool, which the plaintiff said he carried around, and modifying a trolley on which he said he transported most of his work gear.[34]
[34] DCB 135.
75 In reaching this conclusion, I also made allowance for the history recorded by rehabilitation and pain specialist Dr Saleem Khan. He saw the plaintiff on 3 September 2015, on referral from a treating neurosurgeon. I will discuss Dr Khan’s report in greater detail in due course. However, for present purposes, I note Dr Khan appears to have believed the plaintiff reinjured his back, and exacerbated the “old injury”, when performing normal work duties that required excessive lifting, bending and twisting.[35] The history I have summarised, however, suggests there was no discrete further injury or injuries so much as work-related exacerbations with worsening pain and symptoms over a period of some months prior to the plaintiff’s hospitalisation.
[35] PCB 51.
76 Where, as in this case, the plaintiff has likely developed a psychological condition, care must be taken to ensure that only the consequences of the physical injury to the spine are taken into account when determining whether or not the plaintiff has established permanent serious impairment of the spine under paragraph (a) of the definition of serious injury.[36]
[36] See section 134AB(38)(h).
77 Unsurprisingly, Mr O’Dwyer SC drew attention to the substantial body of precedent which guides the Court on when, and in what circumstances, a plaintiff is required to disentangle psychological from physical consequences.[37] Essentially, a plaintiff is not in every case required to strip away, say, likely somatic symptoms to establish the consequences of organic injury.
[37] See for example, Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; and Zivolic v Hella Australia Pty Ltd [2007] VSCA 142.
78 As my discussion of the evidence demonstrates in due course, whether directly or indirectly, doctors who assessed a physical capacity for future employment (albeit in most cases a restricted capacity) would have done so by isolating neurological and organic causes for, say, the level of pain reported. In effect, they have excluded likely psychological causes of the complaint, for instance, that the plaintiff now requires the use of a walking stick from time to time. This is not to say the plaintiff’s presentation and his complaints of pain were not considered genuine by most doctors.
Credit
79 The defendant also opened on the basis of significant credit issues arising from histories provided by the plaintiff. This concern was explored under cross-examination.
80 However, as my analysis of the evidence reveals in due course, I was not satisfied the plaintiff presented as an untruthful witness; or as an exceptionally poor historian; or for that matter, deficiencies (if any) in the histories recorded by doctors necessarily undermined the integrity of the opinions expressed.
81 In my view, various inconsistency in histories recorded by doctors either reflected a poor understanding by the plaintiff of, say, the difference between being dazed, or concussed, or rendered unconscious by the blow to his head; and/or they reflected the likely effect of the passage of time on the plaintiff’s memory.
82 For instance, as to the former, some doctors have recorded a period of unconsciousness after the plaintiff was struck on the head. Cross-examination of the plaintiff confirmed he probably did give some doctors this information.[38] The plaintiff’s answers at hearing, nonetheless, satisfied me discrepancies in the histories recorded were likely largely due to the plaintiff’s belief the terms mentioned above are interchangeable.
[38] TN 24-25.
83 From the defendant’s point of view an example of the latter involved the various accounts given about when the plaintiff first experienced the onset of low back symptoms/pain.
84 However, as my discussion of the evidence relevant to the onset of generalised back pain, or more specifically low back pain, has already shown, some of the earliest medical records do record complaint involving the whole of the spine and/or the lower back in August and September 2011.
Complaint and further investigations – 2012 to 2014
85 X-ray investigation of the thoracic spine obtained by Dr Loizou on 5 June 2012 relevantly reported a compression fracture at the T8 level with loss of approximately 40% of vertebral body height, which the radiologist reported could be recent or long-standing.[39]
[39] PCB 38.
86 It appears that with a view to ruling out other potential causes, Dr Loizou also ordered a full body scan in June 2012, the results of which were not included in the materials tendered.[40] Various medical reports nonetheless record that this investigation reported changes at the T8 level that were not acute, with no evidence of recent compression fracture.[41]
[40] See the plaintiff's first affidavit, PCB 22 and the clinical notes, Exhibit D2.
[41] See for example, Dr Brazenor at DCB 45 and Mr Kossmann at PCB 77.
87 In opening, Mr O’Dwyer SC conceded the radiological evidence of fracture was controversial. For instance, as his written report and a subsequent letter of referral show, Dr Loizou is one of several doctors who have since attributed compressive fracture reported at the T8 level to the incident. Dr Loizou said this compression fracture, which “only became visible on x-rays with the passage of time”, evidenced “the severity of compressive forces” on the rest of the plaintiff’s spine. Dr Loizou reasoned the fracture demonstrated he had initially underestimated the potential impact of compressive forces on the spine.[42]
[42] PCB 57 and see also letter of referral to neurosurgeon Dr Jithoo dated 5 August 2014, PCB 54.
88 There was a hiatus in attendances for treatment of headaches or symptoms affecting the spine between mid-2012 and August 2013. The plaintiff deposes that by November 2013 he was experiencing increasing levels of pain in association with work-related activities described below, such that, by May 2014, he presented with severe lower back pain:[43]
26. … Doing my normal work involved lifting things like switchboards, working in confined areas such as lifts and climbing cranes and that would cause an increase in symptoms. Performing overhead work and looking up as well as the heavy lifting, required in the ordinary course of my work, was becoming unmanageable.
27. By May 2014, I was barely able to function and in addition to my head, neck and shoulder areas, I had severe lower back pain. The pain was radiating to my lower back and into my buttocks and legs. In June 2014 the symptoms were so bad that I was admitted to the Epworth for about 8 days on 6 June 2014 under the management of Mr David de la Harpe. I underwent a further MRI on 6 June 2014, which confirmed a T8 compression fracture.
[43] PCB 22.
89 Notably, commencing from particularly February 2014, the doctor’s records evidence further complaint of ongoing problems involving severe headaches and neck and upper back symptoms in association with work-related activities.[44]
[44] Exhibit D2.
90 For instance, on 7 February 2014 the plaintiff was certified unfit for work, having presented with: “V sore knape/shoulder girdles with headaches +++. Notices it more if he does overhead work eg wiring”.[45] Less than a week later, on 12 February 2014, the doctor prescribed both anti-inflammatory and painkilling medication (Brufen and Panadeine Forte), and recorded the following relevant history:[46]
Pt is suffering +++ with headaches/shoulder girdle pain esp if he uses his neck/arms looking/working up, heavy lifting. This is a real issue as a lot of his work is overhead as an electrician. He has been highly selective in his duties. This is since the incident at work in July 2011 when a heavy timber fell onto the top of his head. I also note that in June 2012 Xrays revealed compression fracture at T8 which most likely was the result of this injury.
[45] Ibid.
[46] Ibid.
91 Clinical notes made by Drs Loizou and Yates indicate further attendances, with treatment on 15 and 18 February 2014 recorded as involving DTM (Deep Tissue Massage) “to his occiput, upper and lower neck and upper back, but also mobilisation to his mid and lower thx and presure (sic) point releases to his levator scapula.”
92 I have already mentioned Dr Loizou’s exchange with the insurer on 2 April and 23 April 2014 in which the doctor explained a gap in the plaintiff seeking payment of expenses for the injury.
93 As the clinical notes and Dr Loizou’s report demonstrate, between 13 May 2014 and 2 June 2014, mid back pain, which the plaintiff reported radiated into his lower back, buttocks and legs, was treated with massage and anti-inflammatory medication (Brufen and Mobic) and painkilling medication, Tramal:
On Tuesday 13 May 2014 –
History:
Since Sunday increasing pain mid back going down into his lower back. No leg radiation. He can’t stand up straight/can’t walk due to the pain. Saw masseur yesterday.
Examination:
Hunched over ++. No spinal tenderness/NLS. Treat as muscularitis and see.
SWD/massage.
On Friday, 16 May 2014 –
History:
He can stand up straight now. Still pain mid and lower back pain. Goes into his buttocks. Largely SQ as the last time.
The SWD/massage had no impact.
Examination:
No bony tenderness.
Discussion re need to rest lying down a few days.
?3/7
On Monday, 19 May 2014 –
Feels SQ. He is going for a massage tonight.
On Monday, 2 June 2014 –
History:
Ongoing back pain – the whole back – more the lower back. He is avoiding doing anything strenuous.
Radiation into the buttocks/legs. Saw masseur – it helped but not sustained.
I will draft referral to a specialist.
Examination:
No bony tenderness.
94 The extract from Emergency Department records of Epworth HealthCare record that on admission on 6 June 2014, the plaintiff’s history and the results of the clinical examination were as follows:[47]
[47] PCB 75b.
History:
A 29yo man – construction worker – gives a Hx of workplace back injury after a wooden plank fell 2m and struck Andreas on the head. MRI performed at the time – no surgery required but Andreas did have severe cervical, interscapular and thoracic back pain at that time.
Since the injury Andreas has experienced frequent exacerbations of his pain. The exacerbations involve the whole spine with the majority of pain felt in the neck, upper thoracic and lumbar regions
Andreas has been taking nurofen and tramadol for his Sxs – over the last few days pain has increased in severity and is constantly present, over the last 2/7 he has experienced N and V.
There is no radicular component to Andreas’ pain though he describes some tingling in his left foot.
Examination:
In pain,…
No midline Cervical tenderness – rather Andreas has tenderness in the muscle both sides of his C spine midline.
Tender mid lumbar spine.
Peroneal sensation and tone NAD.
upper and lower limbs – neurology – normal power demonstrated.
95 On 6 June 2014, MRI scans of the cervical, thoracic and lumbar spine were obtained. The results of these scans relevantly recorded a past history of back injury “Now with pain in the cervical spine to the lumbar spine” along with the radiologist’s findings as follows:[48]
[48] PCB 39-40.
CONCLUSION
Minor disc degeneration with preservation of disc space height in the cervical discs. There is no focal disc protrusion.
Disc degeneration from T6/7 to T8/9 with minor chronic wedging of the T8 vertebral body. No retropulsed fragment or epidural or paraspinal soft tissue mass is seen and there is no cord compression.
Disc degeneration at L5/S1 with small central disc protrusion without neural displacement with mild to moderate bony foraminal stenosis on the left with minor compromise of the exiting left L5 nerve in the left L5/S1 foramen. There is no foraminal disc protrusion.
96 The admission to hospital involved referral to orthopaedic surgeon Mr de la Harpe. In a short report to the admitting doctor, and dated 12 June 2014, the orthopaedic surgeon noted the history of earlier injury. He advised: the plaintiff presented with non-specific symptoms of spinal pain; the MRI scans revealed mild degenerative changes in particular at the lumbar sacral disc without evidence of any surgical lesion; and the plaintiff had been referred to rehabilitation.
97 Within a week of leaving hospital the plaintiff entered a rehabilitation facility for 10 days. As noted by Dr Loizou, the plaintiff had not felt the period in rehabilitation had assisted him. At hearing, the plaintiff recalled he was given a “bucket load” of medications per day and that his condition over the 10 days spent in the facility had not been improved by physical treatment and counselling.[49]
[49] TN 58.
98 On 5 August 2014 Dr Loizou referred the plaintiff to consultant neurosurgeon Dr Jithoo for opinion and management.
99 In the meantime, Dr Loizou arranged further CT and MRI investigation of the plaintiff’s thoracic spine on 19 August 2014. These investigations essentially confirmed pathology in the thoracic spine.
100 As to the results of the CT scans, these reported: “Wedge Compression fracture of the T8 vertebral body with loss of approximately 30% of the anterior vertebral body height. Multiple Schmorl’s nodes in four contiguous vertebral bodies raises the possibility of Scheuermann’s disease”[50] It appears from the report made, the radiologist allowed for a suggested “T8 compression fracture post injury” when he reported MRI results involving: “Mild compression fracture of T8 vertebral body with approximately 25% reduction in vertical height noted anteriorly. Small left paracentral disc protrusions at T6/7 and T8/9 without evidence of significant cord impingement”.[51]
[50] PCB 42.
[51] PCB 41.
101 Dr Jithoo apparently saw the plaintiff in early September 2014. He prescribed a high Taylor brace. The plaintiff deposes he wore this brace continuously for about 6 to 8 months (and has continued to wear it).[52]
[52] PCB 23 and TN 44.
102 By letter of referral, dated 3 September 2014, Dr Jithoo described the following relevant history for rehabilitation and pain medicine specialist, Dr Saleem Khan:[53]
[53] PCB 48.
· neck and back pain subsequent to the incident;
· admission to hospital and rehabilitation;
· current complaints of headache, interscapular pain and loss of appetite;
· current employment as an electrician;
· treatments involving physiotherapy, hydrotherapy, laser treatment, heat treatment and massage with little improvement;
· current medications, which include Tramadol and Diazepam;
· the results of MRI and CT scans relating to the wedge compression fracture of the T8 vertebral body;
· the absence of clinical signs apart from interscapular tenderness;
· the recommendation to wear a high Taylor brace;
· the recommendation the plaintiff return to light duties not involving bending and twisting, and attend Dr Khan to discuss participation in a pain management program or other further treatments.
103 It appears that, during this period, the plaintiff continued to attend gym, hydrotherapy, a spa/sauna as well as a masseur.[54]
[54] PCB 57.
104 Based on orthopaedic and neurosurgical assessments to which the plaintiff was subjected in the period between June and September 2014, I think it fair to accept, as I have, doctors had not found a neurosurgical cause that explained the level of pain and disability with which the plaintiff presented.
105 The plaintiff was initially examined at the request of the insurer on 3 September 2014 by occupational physician Dr Joseph Slesenger. This was for the purpose of reviewing the plaintiff’s medical and other health services.[55]
[55] Exhibit P2.
106 In a lengthy report dated 5 September 2014, among other things, Dr Slesenger recorded the following:
· recurrent headaches and mid and low back pain, and whilst the plaintiff had been able to manage his work, he took time off work one to two days per month due to the severity of his symptoms;
· complaint of pain mainly located in the thoracic spine. Pain radiated into the lumbar spine and also radiated into the occipital and bi-temporal regions and was aggravated by activity, particularly lifting;
· complaint of symptoms of depression, and, among other things, poor memory and concentration;
· treatment involving regular physiotherapy and a self-managed exercise program including gym, hydrotherapy and massage therapy, as well as a range of painkilling, anti-inflammatory and antispasmodic medications. The latter included Tramadol, Panamax, Panadeine Forte, Endone, Valium, Celebrex and Brufen.
107 Having also reviewed radiological documentation, but not it seems the results of the MRI scans obtained on 19 August 2014, Dr Slesenger concluded (as Dr Loizou had) the radiology demonstrated a work-related crush injury to the thoracic spine. The doctor also concluded that the plaintiff had suffered some cervical and lumbar spine soft tissue injury to which he believed the plaintiff’s ongoing symptoms were related.
108 In Dr Slesenger’s opinion the plaintiff had developed a chronic pain condition, with evidence of psychological impairment. The plaintiff was not, Dr Slesenger said, fit to return to work. He (the doctor) could not say with any certainty when the plaintiff would be fit to work given the high levels of pain reported and the impact of potent medications on the plaintiff’s cognition, memory and capacity to drive.
109 Dr Slesenger recommended: review of the medications, which he felt could be contributing to some of the plaintiff’s symptoms, in particular his headaches; psychiatric assessment; ongoing physiotherapy; and reduction in passive treatments over a period of 4 to 6 weeks.
110 As Mr O’Dwyer was quick to point out, despite this assessment of his capacity and fitness to return to work, the plaintiff had elected to return to work from 18 September 2014, albeit in part-time and restricted duties, working on alternate days for a total of 12 hours per week.[56]
[56] See for example Certificate of Capacity dated 16 September 2014, PCB 273-274.
111 In the months that followed, the plaintiff participated in ongoing treatment, which included physiotherapy and Pilates,[57] and pursued a second opinion because, as he deposed, he was frustrated by ongoing pain and symptoms.[58]
[57] See a physiotherapist's report dated 7 October 2014, PCB 59.
[58] PCB 23.
112 The plaintiff was first seen by general practitioner Dr Brian Glassenbury on 1 October 2014. In a letter of referral to orthopaedic surgeon Mr John Cunningham dated 6 October 2014, Dr Glassenbury summarised the plaintiff’s history, as well his assessment of the plaintiff’s condition and the radiology, the latter as follows:[59]
On examination, Andreas shows no neurological abnormality. He has normal tone and power. Reflexes are brisk and symmetrical. He has no sensory level. He does have a moderate thoracic kyphosis and considerable spasm of the mid-thoracic paraspinal muscles. He was wearing his brace appropriately.
It does not seem likely that Andreas has any injury that would require neurosurgical intervention. I have difficulty explaining the increase in pain that seemed to occur in Late May or early June. It seems likely that his T8 compression fracture is historic – of indeterminate age – only arguably associated with his workplace injury and not likely to be contributing to his current pain. I have some concerns about his ongoing use of narcotics and benzodiazepines. To date it does not appear that neuromodulating treatments (amitriptylline, pregabalin) have been trialled.
[59] PCB 46.
113 Mr Cunningham’s letter to Dr Glassenbury dated 6 October 2014 (and copied to Mr de la Harpe and Mr Jithoo) relevantly recorded fluctuating mid thoracic back pain ever since the incident, which the plaintiff reported had not required prolonged periods of time off work before a recent deterioration in pain. As is apparent from Mr Cunningham’s correspondence, he saw no physical or radiological basis (“there is no abnormal signal throughout the thoracic spine”) for surgical intervention. He recommended referral to a pain physician with a view to rationalising the plaintiff’s pain medication.[60]
[60] PCB 75a.
114 The clinical notes indicate approval of a return to work plan on 31 October 2014. This involved the plaintiff working as a safety officer (with minimal manual work) for five hours per day, two days per week.
115 The plaintiff deposes in November 2014 he commenced alternative duties as a Health and Safety Representative on restricted hours (“That role predominantly required observing the job site and ensuring compliance. I also did defects, which did not require work below waist or above shoulder height and tagging and testing tools. I also took on the shop steward role”[61] ).
[61] PCB 24.
116 On Friday, 21 November 2014, the plaintiff attended Dr Loizou, reporting he had woken with a “tearing sensation” in the left scapular region, having spent the previous couple of days wiring switches at work.[62]
[62] Exhibit D2.
117 Judging from comments made in Dr Loizou’s written report, in September 2014, the treating doctor had not been satisfied the plaintiff’s mental state was an issue.
118 That said, Dr Loizou subsequently prescribed antidepressant medication, Efexor, after the plaintiff presented in December 2014 with symptoms suggestive of depression (“rumination, irritability, fatigue, loss of interest, tendency to crying etc”[63]). As I understood the evidence, the plaintiff has continued to take antidepressant medication, Cymbalta, prescribed by current general practitioner, Dr Assaf.
[63] PCB 57.
119 On 6 January 2015 occupational health physician Dr George Wilson was asked by the insurer to review the plaintiff’s medical and other health services and his weekly payment entitlements. Among other things, Dr Wilson’s report relevantly records the following information:[64]
[64] Exhibit P3.
· A diagnosis involving a chronic pain condition with pain sensitisation, the plaintiff having sustained a crushing fracture to the T8 as a result of the incident.
· The plaintiff was then performing modified duties five hours per day on Monday, Wednesday and Friday;
· The plaintiff reported he had been upset by recommendations from various specialists to consider an occupational change, as the plaintiff reported he enjoyed being an electrician and had no desire to do anything else;
· Dr Wilson considered the plaintiff incapacitated for his pre-injury duties and hours;
· Dr Wilson considered the plaintiff limited by chronic pain and probably working near his maximal capacity within the current work restrictions;
· Review in six months’ time was recommended, as well as psychiatric assessment and review by a pain specialist, the latter in an attempt to reduce the use of narcotic medication.
120 The clinical records from early 2015 and Dr Loizou’s report tell us the plaintiff continued to present with symptoms, the onset of which the plaintiff attributed to over exerting himself at work.
121 As such, notes made by Dr Loizou in February 2015 following a meeting with the plaintiff and his case manager from Nabenet relevantly reflected Dr Wilson’s view of the plaintiff’s then working capacity. Although for the reasons outlined below, in Dr Loizou’s case, he did not envisage improvement in his patient’s capacity for work:[65]
On 9 February 2015, I saw the patient together with his case manager Breanne from Nabenet. I note the following entry in my records “I feel he has stabilised to a level of ‘capacity’ which is not likely to improve. He has damage to the spine – most of it not visible/detectable (meaning, not detectable by CT scan, MRI et cetera as it involves ligaments, low-grade injury to facet joints and the whole spine at large). I expect (i.e. anticipate) premature degeneration of discs and apophyseal joints at several levels”.
[65] PCB 57 and Exhibit D2.
122 The plaintiff married his then fiancée in early 2015. He was last seen by Dr Loizou after the plaintiff returned from his honeymoon. On 18 March 2015 the plaintiff complained of pain/stiffness affecting the whole of his lower back.
123 It appears that Dr Glassenbury continued to be involved in the plaintiff’s care for some months after referral to Mr Cunningham in the latter part of 2014. Among other things, the extract from case conference notes dated 27 April 2015 indicate Dr Glassenbury was then attempting to wean the plaintiff off some of his narcotic medication. He anticipated a return to normal working hours within 3 to 6 months.[66]
[66] PCB 47.
124 As we now know, the plaintiff had not returned to pre-injury or full-time duties when retrenched on 30 April 2015. At hearing, the plaintiff confirmed he had not returned to full-time hours, and even though the plan had involved working on alternate days, the plaintiff could only recall having worked Monday, Wednesday and Friday in one week due to back pain prior to termination (“So it would’ve been 15 hours”[67]). As earlier mentioned, the plaintiff attributed retrenchment to his inability to return to full-time hours and normal duties with the defendant.
[67] TN 59.
125 Mr O’Dwyer SC submits, and I accept, the history to the date of retrenchment, particularly that recorded by Dr Loizou, was anything but one of a full and unfettered return to normal work duties and hours; or a history of a return to the plaintiff’s pre-injury activities generally. It was not a history of someone contriving incapacity or unprepared to exercise an existing physical work capacity. It was, so the submission went, a history of a well-motivated young man, who had already spent some years working in a job he loved and in which he clearly expected and wanted to continue working. Moreover, as the defendant’s examining psychiatrist Associate Prof Doherty opined when responding to this question in October 2015, there were no identifiable secondary gains mediating the plaintiff’s presentation (“The worker was clear that he wanted to continue working. He however is of the view that his injuries were sustained because of the negligence of another worker….”[68]).
[68]DCB 138.
126 The most recent MRI investigation results for the cervical, thoracic and lumbar spine were obtained by Dr Assaf on 15 July 2015. These results report the presence of “minor focal posterior disc bulges at C5/6 and C6/7 levels”, and report the radiologist’s conclusions on the pathology in the thoracic and lumbar spines as follows:[69]
[69] PCB 43-44.
Conclusion:
1. Multilevel mild anterior wedging, endplate irregularity and Schmorl’s node formation involving lower thoracic spine, likely sequelae of previous Scheuermann’s disease, unchanged from previous imaging.
2. More pronounced stable anterior wedge compression and irregularity of the T8 vertebral body without displacement, instability or spinal canal compromise, remaining unchanged from previous imaging. No marrow oedema seen to suggest a recent injury.
3. Mild to moderate posterocentral and paracentral disc protrusion at T8/9 level resulting in mild anterior thecal sac indentation and minor impingement of the spinal cord, however, without evidence of compressive myelopathy. This is of interval onset compared to the previous scan.
4. Moderate focal posterior disc protrusion at L5/S1 level resulting in very minimal anterior thecal indentation and slight narrowing of the bilateral lateral recesses with minor contact of the traversing S1 nerve roots bilaterally.
127 On review on 31 August 2015, Dr Slesenger relevantly noted the results of the recent MRI investigation. He advised the insurer the plaintiff presented with a chronic pain disorder of the cervical, thoracic and lumbar spine, secondary to a compression injury and thoracic spinal fracture.
128 Dr Slesenger assessed the plaintiff as fit to return to part-time work for 4 hours per day, 4 days per week (on a graduated return to work plan). This was subject to restrictions on pushing, carrying or lifting over 5kg; and on repetitive bending or twisting; and to the plaintiff having an opportunity to sit and stand as required. Unsurprisingly, this assessment of capacity by the defendant’s occupational physician was one Mr O’Dwyer SC submitted supported finding a likely permanent loss of earning capacity productive of financial loss of 40% or more.
129 By letter dated 22 July 2015, Dr Jithoo referred the plaintiff to Dr Khan for review and for consideration of a pain management program or further treatments.[70]
[70] PCB 49.
130 The plaintiff was assessed by Dr Khan at the Epworth Outpatient’s Clinic on 3 September 2015.[71] In a letter of the same date and addressed to the insurer, Dr Khan relevantly reported the following matters:
[71] PCB 50-53.
· a summary of the results of the MRI investigation on 15 July 2015.
· Dr Khan’s opinion that the work-related incident had caused a mild concussion and T8 compression fracture.
· The plaintiff had returned to modified duties after making a satisfactory recovery.
· As earlier mentioned, in 2013 the plaintiff reinjured his back and exacerbated the old injury due to excessive lifting, bending and twisting in the performance of his normal work duties.
· Treatment had included inpatient rehabilitation admission.
· The plaintiff had not made a satisfactory recovery due to persistent back pain and leg pain.
· Neurosurgeon Dr Jithoo had recommended a Taylor Brace for a five month period which had led to some improvement in posture and pain levels.
· The plaintiff reported pain which disabled him from resuming previous recreational activities including riding his bike and racing his car.
· The plaintiff described pain levels of varying severity between 5/10 and 10/10, with back pain in the mid thoracic as well as low lumbar regions, the onset of which may occur as a result of activities such as bending and twisting or even after a good night’s sleep.
· The plaintiff reported adverse side-effects such as impaired cognition and sedation from the medication, Endone. The plaintiff’s goal was to return to his recreational activities and return to work as an electrician on light duties.
· Dr Khan’s opinion that the plaintiff was suffering from axial somatic pain due to a history of traumatic T8 fracture and disc protrusions, with a component of probable neuropathic leg pain due to neural irritation. He did not consider the plaintiff a candidate for surgery.
· Dr Khan’s opinion that the plaintiff should trial a neurostimulator with a view to using peripheral field stimulation to treat pain instead of pain medication. Dr Khan recommended trialling neurostimulation first before considering an implant. However, as we now know the insurer declined to fund this procedure, the funding of which the plaintiff told the Court he was unable to afford.[72]
[72] TN 60-61.
131 In closing, Mr O’Dwyer SC appropriately acknowledged this pain management specialist had not found a neurological basis for the plaintiff’s complaint. However, I accept counsel’s submission to the effect that, like most other doctors, Dr Khan accepted the plaintiff’s complaints of pain were genuine, and hoped to reduce, if not remove, the plaintiff’s reliance on multiple painkilling and neuropathic medications such as Lyrica, Tramadol, Endone, Propanolol and Panadol Osteo.
132 The plaintiff was referred by the insurer to consultant in rehabilitation pain medicine, Dr Clayton Thomas. He was seen on 23 October 2015. The only radiological results to which Dr Thomas said he had access were those reported by Dr Khan. Dr Thomas relevantly advised as follows:[73]
[73] DCB 113-114
· the plaintiff presented with chronic spinal pain.
· He accepted the T8 vertebral fracture was probably caused by the incident. Dr Thomas, nonetheless, made the point that review of imaging would be helpful.
· He accepted an axial load applied in the manner described had resulted in an ongoing chronic pain syndrome, as a consequence of which Dr Thomas said the plaintiff had developed some emotional distress.
· The plaintiff did not have the capacity to return to pre-injury duties as an A grade electrician performing unrestricted electrical work, although he was fit to return to alternative employment working 38 hours per week within specific restrictions. The latter involved avoiding repetitive bending, lifting and twisting; putting on a trolley 20kg and pulling likewise; and not lifting objects over 5kg particularly between waist height or above chest height (“I think a frequent 5kg lift between waist and chest height would be reasonable, infrequent below-waist height or above-chest height”[74] ). Dr Thomas also accepted the plaintiff’s reported tolerances of up to one hour for driving or sitting, or up to 20 minutes for standing.
· The plaintiff’s condition was still materially contributed to by the claimed injury.
[74] DCB 113.
133 Dr Assaf referred the plaintiff to osteopath Dr Stuart King. On 15 March 2016 Dr King reported the plaintiff had attended for treatment approximately every 10 days since 24 November 2015, to relieve chronic myofascial tension through the cervical, thoracic and lumbar spine as well as into the thighs and legs, as the result of an injury-related crush fracture at the T8 level.[75]
[75] PCB 67-69.
134 Whilst approval for psychological treatment was reportedly obtained in late 2014, psychologist Maria Karefilakis commenced counselling the plaintiff, and did so regularly, from late June 2015.
135 Based on clinical observations and test results obtained by her on 8 July 2015, and again in early April 2016, in a report dated 19 April 2016 Ms Karefilakis advised the plaintiff presented with a persistent depressive disorder with stress.[76] When she reported in April 2016, Ms Karefilakis was nonetheless optimistic about her patient’s psychological recovery. Indeed, at the time, the psychologist considered the plaintiff psychologically fit for work in modified duties. She recommended a gradual transition back to work.
[76] PCB 73-74.
136 As I understood the evidence, counselling ceased when WorkCover stopped funding this intervention.
137 The plaintiff has never been referred for treatment by a psychiatrist. He was, however, referred by the insurer for psychiatric assessment on 25 September 2015.
138 I have already mentioned in passing Associate Prof Doherty’s assessment. In a report dated 20 October 2015, he advised the insurer the plaintiff did not have a diagnosable psychiatric condition. As Associate Prof Doherty explained:[77]
[77] DCB 137.
…, there is no adjustment disorder with depressed and/or anxious mood present. There is not marked distressed due to mood or other symptoms or significant interference with social and occupational function due to the presence of symptoms.
There is however, a significant psychological reaction, which does not meet diagnostic criteria for a psychiatric condition. That psychological reaction is related to the injury, the cause of the injury, which he views as negligence, the subsequent pain, functional loss and loss of employment.
I gave consideration as to whether or not there is psychiatric condition related to pain in my opinion, there is not.
…
From a psychiatric point of view solely, the worked (sic) can return to his pre-injured duties now. There is no incapacity for work from a psychiatric point of view and the worker can return to his pre—injury duties, usual hours undertaking the full duties of his employment.
139 The defendant has conceded Associate Prof Doherty’s assessment is not a current assessment. His findings, nonetheless, suggests that, in the months post-retrenchment in 2015, psychological symptoms secondary to pain and disability were not such as to psychologically impair the plaintiff for pre-injury or alternative employment.
Further assessments in 2016
140 Dr Slesenger re-examined the plaintiff on 19 January 2016. As his report dated 26 January 2018 shows, Dr Slesenger’s opinion differs from Dr Thomas’ in that, when asked whether the plaintiff had the ability to complete more than 50% of his pre-injury hours, Dr Slesenger reported the plaintiff would be able to work at least 19 hours per week.[78]
[78] DCB 85.
141 However, as the supplementary report dated 30 March 2016 shows, after reading a Vocational Assessment Report dated 14 January 2016 (likely the Nabenet report to which several other doctors have referred), the occupational physician relevantly opined the plaintiff was capable of returning to several of the alternative positions named in the Vocational Assessment Report, with the following restrictions:[79]
[79] DCB 89.
· No push, pull, carry or lift over 5kg.
· Sit and stand as required.
· No repetitive bending or twisting.
· 4 hours a day, 4 days a week.
142 The roles identified in Dr Slesenger’s report were: Maintenance Coordinator (“A job specific worksite assessment would be required to ensure that Mr Paraskevas would not be required to perform any on-site maintenance duties or be required to perform inspections that would require manual handling (e.g. opening of manholes or trapdoors)”[80]); Sales representative; and Trade sales assistant. However, as my discussion of current vocational assessment evidence shows in due course, the defendant did not satisfy me that, even with retraining, the position of Maintenance Coordinator represented suitable employment for this plaintiff; or that, even with full-time employment in one or other of the other positions mentioned, the plaintiff could earn 60% or more of the without injury earnings figure in the future.
[80] DCB 89.
143 At the request of the insurer, on 28 September 2016, orthopaedic surgeon, Associate Prof Goldwasser, assessed impairment of the thoracic, lumbar and cervical spines under the Act.
144 In a report dated 30 September 2016, Associate Prof Goldwasser relevantly recorded the following history:[81]
Initially, the pain he was aware of was in the neck and shoulder blade areas and it was quite severe. He continued to be reviewed by the clinic (that is to say the Bridge Road clinic) every few days for the next couple of weeks and then was cleared to return to work.
However, after attending the worksite for one day, he couldn’t continue because of pain. The pain was mainly in the back, extending from the head and neck to the thoracic area and lower back. He then had another two weeks off work and then return to modified duties and reduced hours.…
[81] PCB 75e.
145 Based on his analysis of the plaintiff’s history, the results of investigations and on his clinical findings, Associate Prof Goldwasser assessed whole person impairment of the thoracolumbar and the lumbosacral spines. In doing so, Prof Goldwasser relevantly opined the plaintiff had suffered injury as follows:[82]
Mr Paraskevas has suffered significant injury following an episode at work in July 2011. He probably suffered soft tissue injuries to the cervical spine, and to the lumbar spine, and suffered a compression fracture of the T8 vertebral body in the thoracic spine, with compression being greater than 25%. He also probably suffered soft tissue injury to the thoracic spine.
[82] PCB 75n.
146 As regards the plaintiff’s mental state, in December 2016, the Medical Panel found the plaintiff to be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood relevant to the accepted ‘psychological condition injury’,[83] without there being any degree of permanent psychiatric impairment when assessed in accordance with section 91 of the Act.[84]
[83] DCB 122.
[84] PCB 260.
Further assessment - 2017
147 The plaintiff and his wife separated in early 2017.
148 The plaintiff deposed he commenced, but did not complete, a six week pain management course with Precision Ascend in August 2017, having in February 2017 delayed starting this course due to poor physical and mental health. The plaintiff said he completed a few sessions of the course, but ceased when it was recommended that he commence a personal program tailored to his personal needs instead.[85]
[85]PCB 33.
149 As earlier mentioned, the plaintiff was examined by Dr Brazenor on 7 September 2017 on behalf of the defendant. Dr Brazenor rejected any link between the incident and pathology revealed throughout the spine; and the possibility of injury occurring other than temporary injury to the facet joints in the cervical or thoracic spine.
150 I have already accepted the submission to the effect that the assumption made by Dr Brazenor of no complaint of whole of back pain including low back pain shortly after the incident was incorrect.
151 Mr O’Dwyer SC submits, and I accept, several further assumptions made by Dr Brazenor were not supported by the evidence:
· The compression fracture pre-existed and had been fully healed by the time of the incident. This assumption appears to have its genesis in an unsubstantiated scenario involving the plaintiff having injured his thoracic spine some years earlier in a motor bike accident;
· The plaintiff had returned to full-time, unrestricted duties and sustained these for some years prior to being retrenched. This is contrary to the work history so far summarised;
· The plaintiff’s condition only deteriorated after he was retrenched. On the contrary, the history so far summarised suggests, for some years post-incident, the plaintiff persevered with pain levels that were exacerbated by specific work activities;
· The changes shown on radiology in August 2014 at the mid/lower thoracic spine were age-related chronic degenerative changes. This assumption overlooks the plaintiff’s young age when injured and the fact that for some years the before incident he had been engaged in and coped with heavier work duties;
· The only radiological feature that could be construed as an injury was the broad-based central disc protrusion at the L5/S1 level, and given the remoteness from the blow sustained to the plaintiff’s head, this pathology was unlikely to have been caused by the incident. As my discussion of the medical material so far has shown, most doctors, who turned their mind to the mechanism of injury, have accepted the forces applied to the plaintiff’s head by the blow could have resulted in injury at more than one level of the spine and its surrounding structures;
[104] DCB 65.
188 Dr Bloom concluded changes shown in the thoracic spine were likely due to constitutional/development factors noted by radiologists, with the possibility that the compression fracture itself was secondary to Scheuemann’s disease. And, as Dr Brazenor did, having assumed a history of earlier injury to the spine, Dr Bloom hypothesized the fracture probably pre-existed the incident.[105]
[105] DCB 76.
189 In Dr Bloom’s opinion the mechanism of injury is consistent with the plaintiff having sustained soft tissue injury to the cervical spine of short duration. He believes the plaintiff now presents with a Chronic Pain Syndrome, unrelated to any permanent physical component of injury (“I firmly believe that this man’s presentation is being completely driven by adverse psychosocial factors”).[106]
[106] DCB 63 and 66.
190 The point to be made at this juncture is that concern about the extent to which, if any, psychological factors were mediating the plaintiffs reported levels of pain and disability did not emerge until some years after the plaintiff said he had accommodated pain by restricting his activities both at home and in the workplace. This evidence provides the context for psychiatric evidence adduced by both sides to the effect that the onset of the plaintiff’s psychological condition represented a significant reaction to, among other things, injury-related pain and loss of function and eventual loss of employment, as well as the failure of the plaintiff’s marriage.[107]
[107] Associate Prof Doherty at DCB 137 and Associate Prof Paoletti at PCB 120-121.
191 As to the plaintiff’s physical capacity to perform the physical requirements of his pre-injury duties and hours with an alternative employer, Dr Bloom reported the following:[108]
Notwithstanding this man’s erroneous deep belief that he is permanently physically disabled, taking into consideration the known mild to moderate constitutional degenerative changes in his spine, I would say that he probably does not have the physical capacity to safely and sustainably perform the physical requirements of his pre-injury duties, because at times these duties were particularly physically demanding. On the other hand he would have the physical capacity to undertake most (if not all) of his pre-injury duties. The prime limiting factor now would relate to his compromised level of tolerance, rather than his actual physical capacity.
[108] DCB 67.
192 The meaning of the last mentioned statement is unclear, although Dr Bloom’s comments on the plaintiff’s physical capacity to perform various jobs identified by the defendant’s vocational assessors in April 2018 suggest that he now considers the plaintiff fit for employment where the physical demands are categorised as either light or sedentary. I will revisit the analysis of the suitability of these jobs shortly.
The injury suffered
193 The plaintiff was only 26 years of age when the incident occurred. For a period of some 5 years beforehand, he had sustained full-time, physically demanding employment with the defendant as an A Grade Electrician working in the main on commercial construction sites. He was also a young man who typically engaged in physically demanding sporting and leisure activities, such as football, riding a motor bike and working on and restoring cars and bikes.
194 The evidence supports finding that the incident likely applied significant compressive forces to the spine and surrounding structures. The onset of low back pain from shortly after the incident suggests the presence of traumatic injury at this level of the spine, irrespective of whether or not this was causative of, or contributed to, the development of pathology subsequently reported. The evidence, particularly the medical evidence, further supports finding that trauma to the spine likely caused or contributed to crush fracture injury to the thoracic spine and soft tissue injury to the spine and its surrounds as a whole.
195 Leaving to one side for the moment the likely contribution of psychological factors to the plaintiff’s reported experience of pain and impairment, on balance the evidence supports finding that, since the incident, organic factors have been and are likely substantially responsible for impairment affecting the whole of the spine with associated headaches and fluctuating levels of pain.
Loss of earning capacity consequences – physical injury
196 Most doctors from both sides agree, and I accept, employment as an A Grade Electrician is now beyond this plaintiff’s physical capacity as a result of the injury.
197 As mentioned, the parties agree the plaintiff’s without injury earnings figure is $105,925 gross per annum. 60% of this figure is $63,555 gross per annum, or $1222 gross per week.
Suitable employment
198 In determining whether the plaintiff has sustained a permanent loss of earning capacity which will produce a financial loss of 40% or more, I must consider what he is capable of earning, in this case in suitable employment, prior to comparing this with his pre-injury earning capacity.
199 Section 5 of the Act relevantly defines ‘suitable employment’ in relation to a worker as employment in work for which the worker is currently suited –
a) having regard to –
i. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
ii. the nature of the worker’s pre-injury employment; and
iii. the worker’s age, education, skills and work experience; and
iv. the worker’s place of residence; and
v. any plan or document prepared as part of the return to work planning process; and
vi. any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
b) regardless of whether –
i. the work or the employment is available; and
ii. the work or the employment is of a type or nature that is generally available in the employment market; …
200 The task for the Court involves the application of an objective test to determine the plaintiff’s current suitability for work having regard to the various factors to which the provision refers.
201 It has long been accepted the assessment of current suitability for work is concerned with the plaintiff’s physical capacity for work, not whether employment will or will not be obtained.[109] I note in this regard, the decision of the Court of Appeal in HarrisvDJD Earthmoving Pty Ltd, where two Appeals Justices said a court must consider in detail what, if any, specific job or jobs a plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[110]
[109]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33, [25] and [28].
[110] [2016] VSCA 188, [49].
202 In a footnote, however, the Court of Appeal explained the expression ‘be able to do’ had been used as distinct from an expression such as ‘be able to get’ because:
During the oral hearing, the Court raised with senior counsel for the respondent (…) whether ‘employability’ was relevant, having regard to what was said in Barwon Spinners, especially at… [74]. Senior counsel’s response, in substance, was that the test was one of physical capacity, not employability:…. In his reply, senior counsel for the applicant mentioned ‘employability’ in passing…, but did not develop an argument against, or otherwise take issue with the respondent’s position in that respect. Since the hearing, this Court… has decided RichtervDriscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richterv Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances – that is, her injury-caused incapacity and other relevant personal circumstances which we have discussed – meant that she would likely be unsuccessful in obtaining employment because she had nothing “merchantable” to sell’. Further, there are indications in RichtervDriscoll, especially at [80], that there Honours did not consider that Barwon Spinners required a different approach to be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.
203 In written and oral submissions the plaintiff posed the question what is the plaintiff’s saleable capacity for suitable employment? The decision of the Court of Appeal in Richter was cited as authority for the proposition that earning capacity is a factor of saleability, which requires consideration of whether the plaintiff has anything to sell, and, if so, whether his earning capacity is of diminished saleability.[111]
[111] TN 143.
204 As noted in Harris, Richter involved a statutory benefits case in which the Court of Appeal discussed and contrasted the definition of ‘no current work capacity’ with the definition of 'suitable employment’ under statutory benefits and serious injury regimes established by the Act.
205 In Richter it was said that consideration of suitable employment meant more than simply a physical capacity to engage in a range of stated tasks. It was necessary to consider the entirety of the worker’s relevant personal circumstances.[112]
[112] Op. cit. [76] and [106] respectively.
206 Among the various propositions discussed in Richter relevant to the determination of incapacity for work, the Court stressed that historically the definition of ‘suitable employment’ had not been confined simply to physical incapacity. In this regard the Court in Richter noted several important principals previously articulated by Australian or English courts:
· The word ‘employment’ carries with it the idea of return to work ‘as a settled or established member of the wage earning workforce’.[113]
[113] Op. cit. [75], Philmac Pty Ltd v Asti (1980) 26 SASR 213.
· The definition of ‘suitable employment’ for serious injury applications is as stated by the Court of Appeal in Barwon Spinners & Ors v Polodak.[114]
· Work capacity requires consideration of a plaintiff’s ability to work in employment having regard to the entirety of their personal circumstances. These include the injury-caused incapacity as well as other circumstances personal to the plaintiff bearing upon his/her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. In this regard, owing to incapacity for work arising from injury, the condition of a worker may be such that his or her labour is not saleable or is saleable at a reduced figure.[115]
[114] Op. cit. [78]-80] and Barwon Spinners, [25]-[27.
[115] Op. cit. [95], citing Cardiff Corporationv Hall [1911] 1 KB 1009, 1027.
207 The submission made at hearing was to the effect that the plaintiff does not have a saleable work capacity, or alternatively, any work capacity he has is saleable at a reduced price. It was unlikely, so the submission went, that, in the indefinite future, the plaintiff would “walk into a job” that was reasonably well paid given his physical limitations and his inability to pursue his trade.[116]
[116] TN 143.
208 These submissions, which were based on a construction of ‘suitable employment’ advanced in Richter, were not directly addressed in reply by Mr Middleton.
209 In my view, absent more fully articulated submissions, as framed, the submission made on behalf of the plaintiff is best interpreted in the light of the discussion of the concept of employability by the Court of Appeal in Barwon Spinners where the Court said at paragraphs [73] and [74]:
73 Counsel for the defendants paid special attention to the last sentence in paragraph [20] of the reasons for judgment: “No employer would be attracted to someone who has to agitate herself with regularity.” This was said to be irrelevant on the ground that the statute required consideration of the capacity to earn in suitable employment, a concept to which employability was altogether irrelevant – or so it was argued. There was evidence before the judge that no employer would be prepared to employ a worker who, having suffered injury once in the workplace, had already recovered compensation was now seeking further employment. The risks for the employer, it was suggested, were simply too high. In what we have said above by way of general introduction to these four appeals, we rejected the argument as irrelevant to capacity to earn: capacity to earn proceeds, in our opinion, upon the physical capacity to earn in “suitable employment”, whether or not a job is available.….
74 In our opinion, however, when his Honour said that the plaintiff would not be an attractive prospect for employment he had in mind, not the general argument about employability of someone who has already been injured and claims compensation, but rather the employability of someone with the incapacity of the plaintiff. That she should “agitate herself with regularity” was a reference, we think, to her need to sit and stand with regularity in order to relieve the pain in her back. That was a proper consideration although, for the reasons already given, it may not have justified the conclusion that the plaintiff was altogether unemployable – or more accurately, it does not appear that such a conclusion was justified in the reasons for judgement.
210 In short, in the present case, given the plaintiff’s injury-related physical limitations, the plaintiff submits, and I have allowed for the proposition that, the plaintiff’s physical incapacity and the restrictions imposed likely reduce his employability (saleability if you like) for future employers.
The plaintiff’s current evidence relating to loss of earning incapacity
211 Whilst the plaintiff said he did not consider himself completely disabled, as earlier mentioned, the plaintiff believes he cannot work because he could not reliably attend work each day and perform a full day’s work.[117] The plaintiff emphasised the difficulty he experienced in completing tasks within a set timeframe, and the effect of medication, which he said makes him drowsy.
[117] PCB 33.
212 As to the Plaintiff’s capacity to undergo retraining for suitable alternative employment, and any attempts to gain alternative employment, in June 2018 the plaintiff deposed:[118]
29. … I have not looked for any work because I know I cannot work. I do not believe that I can do any of the jobs that Nabenet have recommended in the vocational assessment reports. A friend asked me recently if I could go into business with him as an electrical contractor because I still have my certification. I just physically couldn’t do it. It would involve driving to sites, inspecting the sites, tagging and testing equipment, and signing off on the paperwork. It would have been a great opportunity but I had to turn it down because I know that physically I couldn’t work, even part-time because the work was beyond me. It also involved interstate work and I just couldn’t do that. Even a weekend away in Sydney was too much for me. My brother recently put on an apprentice because he has the work and I can’t even help my brother out. I couldn’t work at a job in Bunnings or at any other electrical supplier.
[118] Ibid.
213 At hearing the plaintiff relevantly recalled that:
· after being retrenched in April 2015 he was assisted by rehabilitation provider, Nabenet, in seeking employment. The jobs enquired after were part-time jobs up to 20 hours per week. The plaintiff said he did not feel he could do a full-time job due to pain and the need to rest on alternate days.
· His last job interview was in February 2018. This was a position friends had mentioned to him. The job was for a full-time position as an Electrical Supervisor Technician with a company called Task National. However, following discussion of the job requirements, the plaintiff discovered these jobs would involve heavy electrical installations (that is to say carrying ladders, digging trenches, installing mains and aerial cable and working in confined spaces) as well as interstate travel. Having been advised by the plaintiff he could only work a maximum of 20 hours per week, the plaintiff was advised no part-time hours were available and the job was not suitable for him.
· Since retrenchment, the plaintiff had made enquiries at stores where he was informed that no positions were available. As recorded by Dr Bloom in April 2018, the plaintiff, who has an interest in cars, said he had also looked for sales positions such as at SuperCheap Auto.
· The plaintiff has registered for jobs involving the use of his skills as an electrician with the online job seeking app, Seek. So far, no suitable positions have been notified, as the positions advertised have involved full-time employment at a minimum of 38 to 40 hours per week.
The defendant’s Vocational Assessment Reports
214 In closing, Mr Middleton drew attention to several positions identified as suitable by an employment placement consultant and occupational therapist employed by Vocational Assessor, Recovre.
215 The plaintiff was interviewed on 24 February 2018. It appears this vocational assessment was restricted to the earlier of Dr Bloom’s two reports, where he analysed medical opinion and materials without examining the plaintiff, and to Associate Prof Paoletti’s psychiatric assessment of the plaintiff earlier this year.[119]
[119] DCB 5-6.
216 Six positions were said to represent suitable employment options for this plaintiff based on his education, work history, transferable skills and opinions to the effect that the plaintiff retained a capacity for suitable employment.
217 These six positions involved employment as an Electronics Technician (with training); a Facilities/Building Manager; a Cashier (Hardware); and Order Clerk (Hardware); a Rental Salesperson; and an Electrical Engineering Draftsperson and Technician.
218 Mr Middleton submits the equivalent of 38 hours per week as an Electronics Technician, or as a Facilities/Building Manager would take the plaintiff over the statutory earnings threshold. It was initially said that in employment as an Electronics technician, the plaintiff would earn $1438 gross per week, or between $1438 and $1723 gross per week as a Facilities/Building Manager.[120]
[120] DCB 6 and the further report dated 27 June 2018 from Recovre setting out wage and labour market information for each of the six positions identified in the earlier report.
219 Drs Brazenor and Bloom were both invited to comment on the Recovre Vocational Assessment report dated 18 April 2018. They both considered the plaintiff physically capable of undertaking each of the named positions on a full-time basis.[121] Notably, Dr Bloom assessed the physical demands of employment as an Electronics Technician as, in his words: “light”, and the physical demands of employment as a Facilities/Building Manager as, again in his words: “sedentary, semi-sedentary and very light”.[122]
[121] Dr Brazenor, on 16 May 2018, DCB 39-40, and Dr Bloom on 23 April 2018 DCB 57-69.
[122] DCB 67.
220 A further Vocational Assessment Report from Recovre dated 27 June 2018 contained wage and labour market information for the Electronics Technician and Facilities/Building Manager positions.[123]
[123] DCB 38b-e.
221 In summary, the further information indicated the following matters.
222 The Electronics Technician position falls within the description ‘Electronics Trade Workers’. The physical demands for these workers typically fall within the ‘light’ category, which is defined as lifting a maximum of 9.1kgs with frequent lifting and/or carrying of objects weighing up to 4.5kgs. Light work occupations include occupations with walking or standing to a significant degree, and/or sitting most the time with a degree of pushing and pulling and/or leg controls.
223 The educational and training requirements usually needed involve a Certificate III including at least 2 years of on-the-job training, or a Certificate IV, or at least 3 years relevant experience. On-the-job training is sometimes needed in addition to a qualification and registration or licensing may be required.
224 Part-time and full-time employment opportunities exist for young and older workers with 497 jobs available for Electronics Trade Workers in the western and northern suburbs of Melbourne. The approximate salary was said to be between $1215 and $1302 gross per week.
225 The Facilities/Building Manager position involves organising, controlling and co-ordinating the operation of all physical aspects of a facility. The physical demands for these workers typically fall within the ‘light’ category, as defined above.
226 The desired educational requirement is a Certificate III or IV. Part-time and full-time employment opportunities exist for young and older workers, with an estimate of 418 jobs available for Facility Managers in the northern and western suburbs of Melbourne in 2018. The approximate salary guide was said to be between $1438 and $1723 gross per week.
227 Based on the two positions referred to above, Mr Middleton submits the plaintiff cannot establish the required 40% or more permanent loss of earning capacity.
The plaintiff’s Vocational Assessment Reports
228 Three Vocational Assessment reports, dated 10, 13 and 14 May 2018, prepared by psychologist and vocational assessment specialist from JobOptions Consulting, Bill Radley, were tendered on behalf of the plaintiff. Mr Radley previously reported on 20 May 2016. The report dated 10 May 2018 followed a telephone review on 3 May 2018.[124]
[124] PCB 165-191.
229 The report dated 13 May 2018 is a supplementary report in which Mr Radley comments on the suitability of employment options suggested by Nabenet Rehabilitation on 14 January 2016, and by Recovre in its recent report dated 18 April 2018.[125]
[125] PCB 192-216.
230 The third report dated 14 May 2018 contains wage information for suggested employment options for the future.[126]
[126] PCB 217-223.
231 The first report, dated 10 May 2018, outlines Mr Radley’s assessment of the plaintiff’s capacity to return to his pre-injury work as an A Grade Electrician; his capacity for alternative employment having regard to the plaintiff’s current work skills and impairment; and his capacity for occupational retraining for alternative or sedentary employment in the future.[127]
[127] PCB 171.
232 In short compass, Mr Radley assessed the plaintiff as having no capacity to return to any type of alternative employment for which he currently has the necessary skills, training and/or experience. The plaintiff did, however, present with some potential for occupational retraining for more sedentary types of employment, although this would require completion of an appropriate course that also made allowance for his physical limitations.
233 In the lengthy and detailed supplementary report, Mr Radley commented on the suitability, or not, of the various alternative full-time positions to which either Nabenet referred in the report dated 14 January 2016, or to which Recovre referred in the April 2018 report. Among other things, Mr Radley noted deficiencies in the information provided by the Nabenet and Recovre reports. He offered the following pertinent observations about the two positions under discussion:[128]
[128] PCB 192-216.
· The Nabenet and Recovre reports appear to “grossly overstate” the plaintiff’s residual transferable work skills and ignore or minimise his injury impairment.[129]
[129] PCB 198.
· The plaintiff has no job qualifications, skills or experience near the occupations suggested. Rather he has Year 12 education and has only ever worked in Electrical Apprentice and Electrician occupations.
· The minimum educational entry requirements for the position of Facilities/Building Manager is Associate Diploma, Advanced Diploma or Diploma. At least three years relevant experience may substitute for the formal qualifications, and in some instances relevant experience is required in addition to the formal qualification.
· To gain employment in this field, most applicants for this type of work are usually qualified tradespersons with further qualifications in management.
· The work duties require three key skills. Firstly the ability to perform moderately physically heavy work duties. Secondly, good social, interpersonal and management skills; and, thirdly, good literacy, administrative and computer skills.
· The physical work skills are of a ‘Medium’ work nature. This involves lifting up to 22.7 kg occasionally with frequent lifting and/or carrying of objects weighing up to 11.3 kg.
· The duties could include climbing up into ceilings, carrying ladders and hand tools, crawling under floors and into other confined spaces to identify and confirm that repairs and maintenance work is required and the carrying out of smaller or more immediate repair or maintenance tasks when other trades are not immediately available and so on. The post injury physical restrictions imposed on the plaintiff would preclude him from performing work of this nature.
· The plaintiff would need to complete a formal occupational training course in facilities management. The work also requires a very high level of clerical administrative skills involving preparation of detailed maintenance and construction costing reports and so on. The plaintiff lacks appropriate clerical administrative skills.
· The plaintiff has no current work capacity for this occupation.
· The minimum educational entry requirements for an Electronics Technician is as previously noted. The plaintiff does not have these qualifications or skills, training or experience in the repair or refurbishment of electronic products. An example of a suitable qualification would be completion of Apprenticeship in Electro Technology Assembly and Servicing, or Diploma or Advanced Diploma in Electronics Engineering, or post-trade, a Certificate III in Electronics and Communications (a one-year course) or a similar qualification.
· The Nabenet and Recovre reports do not reference the necessary formal qualifications for this position, and fail to appropriately differentiate between the transferable skills of an Electrician and an Electronics Technician.
· Whilst the work is appropriately described as ‘light’, it would, nonetheless, require the plaintiff to sit in a stooped position for extended periods with little opportunity to stand and move around due to predetermined work desk arrangements. The work also requires the ability to lift and carry light weights of up to 4 or 5 kg on a regular basis and it requires sophisticated and up-to-date knowledge of electronic circuitry, testing electronic equipment and general computerised electronic manual and equipment.
· The post injury physical restrictions imposed on the plaintiff would preclude him from performing work of this nature. The plaintiff has no current work capacity for this or any similar occupation.
234 In his final wage information report, among other things, Mr Radley made the following further pertinent observations regarding the interpretation of wage and salary data, and the wage details for the two occupations under discussion:
· caution is required in interpreting wage and salary data collected from a variety of sources. Moreover some sources of wages information quote different statistical measures, which can also produce quite different results.
· For the purpose of his report Mr Radley provided minimum award wage information for each occupation sourced from the Federal Government Fair Work Australia website. The minimum award wage is the wage level a new employee is most likely to be paid. In Mr Radley’s view it is not statistically appropriate to quote average or median or even average wage range when considering the wage a new employee is likely to be offered.
· The wage figures quoted by Mr Radley did not include any allowances, overtime, penalty rates, annual leave loading, superannuation payments or other payments such as commissions, profit sharing or bonuses.
· Under the Fair Work Australia Modern Awards the occupation of Facilities/Building Manager is included in the classification for a Grade 8 Employee under the Amusements, Events and Recreation Award 2010 (updated to 4 December 2017). The minimum award wage rate for full-time work (38 hour week) is $927.50 gross per week, or an hourly minimum wage of $24.40 gross per hour for full-time or part-time work. Annualised this amounts to $48,230 gross.
· Under the Fair Work Australia Modern Awards employment as an Electronics Technician is classified as an Electrical Worker Grade 5 under the Electrical, Electronic and Communications Contracting Award 2010 (updated to 4 December 2017). The minimum modern award wage rate for full-time work (38 hour week) is $809.10 gross per week, or an hourly minimum wage of $21.29 gross. Annualised this amounts to $42,073.
235 Both Mr Kossmann and Mr Brownbill were provided with the Vocational Assessment Reports of Recovre for April 2018 and of Mr Radley, although Mr Brownbill only comments on extracts from Mr Radley’s report dated 10 May 2018.
236 In Mr Kossmann’s opinion, as a result of injury to his spine, the plaintiff has no capacity to work in any of the alternative positions recommended by Nabenet in January 2016, or by Recovre in April 2018.
237 Mr Brownbill also received the reports of Dr Bloom, dated 14 March 2018, and of Mr Kossmann, dated 14 May 2018. In my view, Mr Brownbill’s evidence, which was concerned with the effect of work-related injury to the plaintiff’s spine as a whole, reflects a somewhat guarded view of the plaintiff’s physical capacity to work full-time hours in any employment in the future:[130]
[130] PCB 137.
I have reviewed the job options suggested by Recovre and consider it likely that the one of “sales representative (electrical services or equipment)” would not conform to the activity restrictions I have previously referred to.
However from a purely physical neurosurgical point of view I consider he would be capable of attempting a graded return to work program in the other suggested options in that they appear to conform to the activity restrictions referred to. The number of hours he could work physically would be determined by his responses.
I do accept the broader comments made by Dr Radley and Dr Bloom with regards to the overall work capacity. I accept that on probability he would need to undergo occupational retraining and that a review with respect to “multi disciplinary functional restoration program” would be appropriate.
As outlined previously, from a physical neurosurgical point of view, any job proposed would need to conform to the physical requirements of avoidance of heavy lifting, or forced spinal mobility.
238 For convenience, the written and oral submissions by counsel for the plaintiff on employment options suggested by Recovre, and on which Mr Radley also commented, are summarised in point form as follows:
· As already mentioned, even if, with retraining, the plaintiff has the capacity to work full time, all but two of the employment options to which the Recovre report dated 27 June 2018 referred are under the earnings threshold under the Act.
· There is a significant discrepancy between the approximate salary guide on which Recovre relied and the hourly rate payable under the Fair Work Australia modern award to which Mr Radley referred.
Electronics Technician - the plaintiff submits:
· It cannot be assumed the plaintiff could achieve a salary at the average mark under the approximate salary guide, which evidently applies to all Electronics Trade Workers.
· If the plaintiff were to obtain full-time employment in the future as an Electronics Technician it is likely that he would be paid nearer the Award level than the average and approximate amounts suggested by Recovre. Moreover, there is no suggestion that the plaintiff would be capable of overtime, which is likely included in the average amounts suggested by Recovre.
Facilities/Building Manager - the plaintiff submits:
· If the plaintiff were to obtain full-time employment in the future as a Facility/Building Manager it is likely that he would be remunerated at a rate nearer the Award level than the average and approximate levels suggested by Recovre.
239 The plaintiff submits on the balance of probability he would not be able to earn at or above 60% of the without injury earnings figure of $63,555 gross per annum.
240 Based on the evidence as a whole, I formed the view that Mr Radley’s more detailed analysis of suitable employment options and wages information as it related to this plaintiff’s circumstances should be preferred.
241 Allowing for a real-world view of this plaintiff, he is a young man with a significantly compromised spine. Save for performing some alternative duties from time to time post injury, all of the plaintiff’s training and experience to date has been in employment as an electrician. Following retrenchment, he had some assistance from Nabenet Rehabilitation in seeking part-time employment for up to 20 hours per week, without success.
242 On balance, neither of the two positions identified by the defendant represent suitable employment for this plaintiff now or in the future.
243 This is not to deny, however, the body of evidence which indicates a likely aptitude for retraining for and capacity to engage in alternative employment in the future. However, the plaintiff’s potential in this regard should not be over- stated, given the level of the plaintiff’s education, his employment history since entering the workforce, which was centred on his physical capacity to sustain heavier work duties and work outdoors; and the restrictions on his activities. The latter are permanent.
Conclusions
Impairment of the spine
244 The plaintiff has met the narrative test. Allowing for the length of time since injury and the medical evidence, the plaintiff satisfied me impairment of his spine is permanent, and that the consequence of the plaintiff’s loss of earning capacity is appropriately described as at least very considerable when judged by comparison with other cases in the range.
245 The plaintiff has also met the statutory test for loss of earning capacity in that he has established a likely permanent loss of earning capacity productive of a financial loss of 40% or more.
246 I was satisfied this plaintiff’s earning capacity, and, by reason of physical incapacity, his employability is reduced due to permanent injury-related impairment of the spine. Moreover, even with occupational retraining and further rehabilitation, any residual capacity for employment if exercised is unlikely to result in the plaintiff earning 60% or more of the without injury earnings figure.
247 The plaintiff has established an entitlement for leave under paragraph (a) of the definitions of serious injury. I propose to order leave to bring common law proceedings for recovery of damages for pain and suffering and pecuniary loss arising from work-related injury to the spine sustained on 29 July 2011.
Psychological impairment
248 The defendant submits Associate Prof Paoletti’s assessment of the plaintiff’s psychological incapacity for employment is, at best, equivocal.
249 Based on particularly this recent psychiatric evidence, I accept the incident probably did, as Associate Prof Paoletti opined, precipitate the psychiatric conditions, which he said currently incapacitate the plaintiff for employment. However, having regard to all of the evidence, I could not be satisfied the plaintiff’s psychiatric impairment for employment was likely to last for the foreseeable future. Accordingly, whilst I accept the consequences of psychiatric impairment are currently debilitating and objectively speaking significant, I could not be satisfied the plaintiff had established severe permanent mental or permanent severe behavioural disturbance or disorder in accordance with the requirements of the Act.
250 For the reasons already stated, I propose to dismiss the application as it relates to leave for psychiatric impairment under paragraph (c) of the definition of serious injury.
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