Pederson v ISS Facility Services Pty Ltd

[2015] VCC 318

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-11-06087

MICHAEL PEDERSON	Plaintiff
v
ISS FACILITY SERVICES PTY LTD	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 and 27 October 2014
DATE OF JUDGMENT:	25 March 2015
CASE MAY BE CITED AS:	Pederson v ISS Facility Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VCC 318

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION

Catchwords:           Damages – serious injury – impairment of the cervical spine – aggravation – organic injury – pain and suffering – loss of earning capacity

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

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Palmer Tube Mills (Aust) Pty Ltd v Semi Semi [1998] 4 VR 439; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Acir v Frosster Pty Ltd [2009] VSC 454; Richards v Wylie (2000) 1 VR 79; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201

Judgment:Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Hayes with Ms S De Guio	Shine Lawyers
For the Defendant	Mr J Batten	Hall & Wilcox

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant between November 2005 and June 2006 (“the period of employment”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

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

4       The relevant body function is the spine.  Applications in relation to the right carpal tunnel/right upper limb and psychiatric impairment were abandoned.

5 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.

6       Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

7       The impairment of the body function must be permanent.

8       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

9       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

10      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

11      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

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

13      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd & Anor[2]  and Petkovski v Galletti[3] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

[3](1994) 1  VR 436

14      The plaintiff relied upon four affidavits and gave viva voce evidence.  He was cross-examined for over a day.  He also relied on an affidavit sworn by his wife, Susan, on 16 October 2014; Leslie Rose, sworn on 29 August 2013, and Michael Coates, sworn on 8 October 2014.  The defendant relied on affidavits sworn by Jeff Russell and Natalie Ross on 7 December 2012. 

15      Numerous medical reports and other documentation were relied upon by the parties, detailing the plaintiff’s neck condition pre and post injury in 2006.  I have read all the tendered material.

The Plaintiff’s evidence

16      The plaintiff is aged fifty-four, having been born in October 1960 in Melbourne.  He left school during Form 4 and thereafter worked mostly in significant manual work, including working as a builder’s labourer, on oil rigs, as a concreter, roustabout, forklift driver, trades assistant and labourer.[4]

[4]Transcript “T” 26

The 1999 injury

17      In early 1999, the plaintiff started work with Ready Workforce Pty Ltd as a forklift driver/labourer.[5]  On 4 October that year, he injured his right shoulder and neck at work when some boxes fell and hit him on his right shoulder (“the 1999 injury”). 

[5]T29 – plaintiff could not recall how long he was in that employ before injury

18      The plaintiff’s claim for weekly payments in relation to his neck and shoulder injury was accepted and he received payments for a number of years.[6] 

[6]T99

19      In cross-examination, the plaintiff confirmed he gave answers to doctors that he believed were true and correct.  He remembered most things and had an average memory.[7]

[7]T23

20      The plaintiff could not recall telling some doctors he had only been off work for three years after the 1999 injury.[8]  It could have been four or five years, he was not sure.  He agreed he received payments for 275 weeks from October 1999 until April 2005.

[8]T32

21      Following the 1999 injury, having initially been treated by his general practitioner, Dr Malekzadeh, the plaintiff underwent quite a lot of treatment.  In about March 2000, he had an MRI scan of his right shoulder and then an arthroscopy performed by Mr Pianta in about May that year (“the first shoulder surgery”). 

22      That surgery did not improve the situation very much and the plaintiff was subsequently referred to another orthopaedic surgeon, Mr Hoy, who, in about 2002, performed more significant right shoulder surgery (“the second shoulder surgery”).

23      Thereafter, the plaintiff’s right shoulder continued to cause ongoing problems and he had conservative treatment.  He deposed he also had problems with his neck and underwent a radio-frequency denervation in April 2001. 

24      The plaintiff had some counselling for psychological problems, related in part to his injury and in part to family issues. 

25      In cross-examination, the plaintiff agreed he had a cervical spine MRI scan in 2001 because he had pains coming down his right arm.[9]  He also agreed that he was admitted to Epworth Hospital on 12 October 2001 for a cervical discectomy under the care of Mr Jensen.  The plaintiff wanted to undergo neck surgery when admitted to hospital[10] and he understood he was in Epworth Hospital for his neck.[11]

[9]T103

[10]T40

[11]T89

26      However, Mr Jensen did not operate, as the plaintiff was suffering sleep apnoea, and the plaintiff later underwent treatment for this condition.[12] 

[12]T39

27      The plaintiff deposed that about a year after the second shoulder surgery, there was a considerable improvement in his condition.  During 2003, he was examined by a large number of doctors on behalf of the insurer whom he believed thought he was capable of returning to many different forms of light work. 

28      The plaintiff’s general practitioner and treating psychologist agreed, and the plaintiff was happy to return to work if he could find some suitable employment. 

29      The plaintiff deposed he was referred to a rehabilitation provider, IWCC, with which he was involved from about March 2003 until February 2005.  He believed he fully cooperated with their attempts to rehabilitate him.

30      In July 2004, the plaintiff underwent a very detailed assessment performed by IWCC.  He believed the rehabilitation adviser wrote a report setting out that he was fit for jobs such as despatch clerk, stock-taker, product examiner, customer service consultant, console operator and mail sorter.  The plaintiff also completed a Certificate I in Information Technology to increase his skills and widen his vocational options.

31      The plaintiff believed his general practitioner also fully supported a return to suitable light-work duties. 

32      In cross-examination, however, the plaintiff could not remember receiving any return to work plans, nor could he call being involved with a rehabilitation provider between 2000 and 2004.[13]

[13]T25

33      The plaintiff could not recall anyone trying to help him get back to work.  He did a computer course, but IWCC did not get him back into the workforce.  He was told by IWCC that it did not think the jobs suggested were right for him, as they were out of his “learning skills or capacity”.[14]

[14]T54

34      In cross-examination, the plaintiff did not disagree that when he saw Mr Jensen for medico-legal purposes in 2003 he was then continuing to complain of neck pain.  The plaintiff agreed that he was then reluctant to have surgery because of the pain from the second shoulder surgery, which was a very big operation.[15]

[15]T112

35      In 2003, the plaintiff probably told Dr Kwong he was too scared of neck surgery.  He probably told her he could never work again with his shoulder.[16]

[16]T115

36      The plaintiff was probably having problems lying on his right shoulder when he saw Mr Troy in February 2003.  He could not remember telling him of pins and needles in his right middle and ring fingers.  He did not know for how many years prior to the onset of symptoms in June 2006 he had had those complaints.[17]

[17]T120

37      The plaintiff agreed he had had headaches for many years[18] and would have complained in that regard to Mr Troy in October 2003.  The plaintiff was then still having pins and needles in his right middle and ring fingers.[19]

[18]T121

[19]T122

38      The plaintiff agreed that when seen by Mr Deacon in early 2003, just after the second shoulder surgery, he probably told him he still had pain over the aspect of the right side of his neck, extending up behind his ear.  He also had pain in his right shoulder, extending down his arm to his middle and ring fingers, which had pins and needles and numbness where the carpal tunnel was fixed.  He probably told him that the pain terminated in his fingers.[20]

[20]T110

39      The plaintiff agreed that in 2004, he was depressed due to his restrictions, as Ms Folley described, and that he saw her for counselling on 87 occasions between August 2001 and March 2005.[21]

[21]T113

40      The plaintiff could not recall telling the Medical Panel in May 2004 that he had constant pain in his neck in the right side which extended down to the outside of his right shoulder.  He could not recall telling the Panel, as it recorded, that the pain extended in his right arm to his right middle and ring finger.  It could be possible he then had pain in his right middle and ring finger, with numbness in those fingers, but he could not remember.[22]

[22]T57

41      The plaintiff confirmed he requested conciliation on 15 March 2004 after he was advised his payments were to be terminated.[23]  In his undated handwritten letter attached to that request, the plaintiff was referring to pain in his neck and shoulder.[24]

[23]T177

[24]T52

42      By letter dated 8 March 2005, the plaintiff was advised his compensation payments were to cease at 7 April 2005 on the basis that he was no longer incapacitated for work as a result of the 1999 injury to his right shoulder and neck.  He could not remember funding for medical and like expenses being terminated before he started work with the defendant.[25]

[25]T77

The subject injury

43      Having been unemployed, looking for suitable work, the plaintiff agreed that in early December 2005, he obtained a position as a cleaner with the defendant, which had a cleaning contract for Smorgons. 

44      The plaintiff deposed he worked full time at a large industrial complex.  The work was quite physical and heavy and included buffing floors, mopping, sweeping, emptying bins and general cleaning.  The plaintiff did not have much help.  The equipment was pretty basic and he did not receive any training.

45      The plaintiff’s rostered hours were five days, 5.5 hours a day, and he sometimes worked overtime.  He was paid $16.80 a week and grossed about $462 per week.  He was glad to be back in the workforce and earning income.

46      The plaintiff explained that he also worked on Saturday and Sunday, and his affidavit was incorrect in this regard.[26] 

[26]T170

47      The plaintiff’s Claim Form set out his hourly rate was $16.90 and noted he worked overtime, although not specifying the number of hours worked or the amount earned.[27]

[27]The employer set out in its claim report that the plaintiff did no overtime or shift work and set out identical wage rates and hours to those detailed by the plaintiff

48      The plaintiff did not disagree that Konekt carried out an assessment of his 1999 injury household help entitlements in late 2005, whilst he was working with the defendant.[28] 

[28]T35

49      The plaintiff denied that at that time, he had been receiving gardening help for three years.[29]  He could not remember making a claim in that regard on the basis that he was continuing to maintain he suffered neck and shoulder problems after starting with defendant.  He did not ask for home help, as his wife did those duties.[30]

[29]T35

[30]T36

50      The plaintiff did not recall telling Konekt that he was uncertain about his prognosis or that he was then not having any treatment.  He was probably taking Panadeine Forte and Panadol, because that is what he has always taken. 

51      The plaintiff did not recall, in the months leading up to December 2005, being advised to avoid lifting weights in excess of 2 kilograms and also overhead reaching.[31]  He did not remember having been on light work certificates for the previous five-and-a-half years.  He could not recall telling Konekt that he had a toothache-like pain shooting into his neck and right shoulder, although some of the details recorded by Konekt were pretty consistent with the pain he receives.[32]

[31]T40

[32]T41

52      The plaintiff could not recall telling Dr Malekzadeh in late 2005 that he had a chronic neck condition, but “the doctor would not lie”.  He might have said the plaintiff’s neck was not likely to improve and he had a chronic condition.[33] 

[33]T43

53      The plaintiff could not remember Dr Malekzadeh telling him he was not able to complete any handy-work tasks involving pushing, pulling or lifting.[34]

[34]T44

54      The plaintiff could recall speaking to Konekt but he could not remember what he said and did not say.[35]  He could not recall saying he could not hold a Whipper Snipper or do the lawn mowing at that time, or hang out the washing.[36]

[35]T46

[36]T47

55      The plaintiff could recall he was limited in what he could do and for how long he could do it at the end of 2005.  Otherwise, he honestly could not remember whether it was because of constant neck and right shoulder pain.[37]

[37]T48

56      The plaintiff could not recall telling Konekt that he and his wife were managing well with household duties at that time.[38]

[38]T176

The subject injury

57      In about June 2006, the plaintiff was working particularly hard and he started to experience symptoms by way of pins and needles and numbness in his right arm.[39]  He saw his general practitioner and an MRI scan was organised.

[39]T55- confirmed by the plaintiff

58      The plaintiff initially went to the nurse.  His symptoms persisted for another five days, and she suggested he go off site.  The plaintiff could not confirm that he had numbness and pain extending into his right hand and particularly the middle and ring fingers before starting work with the defendant.  It must have been the case, as he told the Medical Panel, but he could not remember.[40]

[40]T58

59      The plaintiff answered doctors’ questions truthfully.[41]

[41]T59

60      In July 2006, the plaintiff saw Mr Li, orthopaedic surgeon, who suggested he may need surgery.  The plaintiff agreed he probably did not tell him about his previous history of neck problems because he was more concerned about his shoulder.[42]

[42]T146

61      The plaintiff probably told Mr Li he had numbness and tingling in his right hand, but he could not recall saying it.  He could not recall saying initially the pain was around the outer aspect of his elbow but it now involved the whole elbow, but he probably did.[43]

[43]T61

62      Mr Li referred the plaintiff to Mr Hunt, whom the plaintiff first saw in August 2006.  The plaintiff was then having severe neck pain and stiffness and also pain and tingling into his right arm and finger.  Most physical activities were causing problems.  It was difficult to sleep and he was taking strong painkillers. 

63      Mr Hunt advised the plaintiff he might require surgery but suggested first trying conservative treatment.  Unfortunately, medication did not help much and the plaintiff was subsequently reviewed by Mr Hunt, who suggested he undergo a cervical discectomy and fusion, which took place on 16 October 2006 (“the neck surgery”).

64      The plaintiff could not recall what he told Mr Hunt when first seen.  He probably told him about a previous fractured scapula.  Mr Hunt would have known about the shoulder surgery.  The plaintiff did not know why Mr Hunt did not record anything about his neck.[44]

[44]T95

65      The plaintiff doubted whether he discussed his previous neck problem with Mr Hunt, but would have thought Mr Hunt had the documents from Mr Jensen.[45]  The plaintiff could not recall, as a general proposition, denying having had previous neck problems.[46]

[45]T146

[46]T147

66      The plaintiff recalled Mr Hunt was pretty keen to do the procedure on his neck.  The plaintiff denied he was the person keen to have the surgery.[47]  Different drugs had been tried before Mr Hunt decided to operate.  The plaintiff could not recall receiving any advice about natural improvement and conservative treatment from Mr Hunt.[48]

[47]T96

[48]T97

67      The plaintiff was the one with the pain, but “it went both ways”.  Mr Hunt was very keen to operate as well, and he “was with” the plaintiff in terms of surgery and ultimately thought it was appropriate.[49]  After ceasing work, the plaintiff’s pain was getting worse.[50]

[49]T181

[50]T101

68      After the neck surgery, there was some improvement.  However, the plaintiff continued to have tingling in his right hand.  Mr Hunt did some further tests and diagnosed right carpal tunnel and advised the plaintiff that he might also need surgery for that condition.  Liability having been denied for this surgery, the Medical Panel then made a decision in the plaintiff’s favour in November 2007. 

69      Following carpal tunnel surgery undertaken by Mr Hunt in January 2008, there was some improvement in the plaintiff’s wrist condition – the middle and ring finger tingling went away – but he still had significant neck disability and pain radiating into both shoulders.  He was then taking Tramadol, Mobic, Nurofen and Panadol.

70      After a number of months off work following the neck surgery, the plaintiff returned to very light office duties on restricted hours, initially two hours a day, later increasing to five hours per day.  It was not a real job and he was not required to do much at all.  The return to work lasted about eight months.  For a while, the plaintiff worked in the office putting files together but it was pretty meaningless work. 

71      The plaintiff was also given a truck jockey job for a while but it was a “nothing job”; he basically had to sit in the cabin.  However, he enjoyed being back at work and out and about but he often had to lie down for an extensive period after the working day.

72      The plaintiff agreed that on 29 September 2008, Mr Hunt probably certified him fit for work not involving heavy lifting.  There were probably five brief periods when he attempted to return to work, but he could not remember.  In April 2009, there was a job involving picking up papers at Victoria Gardens, but it strained the plaintiff’s neck.[51]  In the end, the plaintiff could not do the suggested jobs.[52] He has been unable to find suitable work since.

[51]T166

[52]T167

73      In October 2008, Mr Hunt referred the plaintiff to pain management specialist, Dr Muir.  The plaintiff was then experiencing chronic pain and some swelling in his neck, and he was taking three to four Tramal a day.  This medication was producing significant side effects, so Dr Muir tried the plaintiff on patches and other medication.  However, the patches made him sick and he could not keep using them.

74      In November 2008, the plaintiff was sent a notice advising his weekly payments would be terminated in February 2009 because he had received benefits for 130 weeks.  Payments were ultimately ceased in June 2009.  Shortly thereafter, the plaintiff’s employment was formally terminated. 

75      During 2009, the plaintiff remained under Dr Muir’s care.  He recommended a series of blocks and epidural steroid injections.  The blocks caused the plaintiff excruciating pain and gave him only short-term relief.  On one occasion, the plaintiff obtained relief for a few days from a block, but the rest were just very painful.[53]

[53]T148

76      Dr Muir also recommended radio-frequency denervation.  However, the plaintiff was reluctant to undergo any further procedures after the neck surgery. 

77      In 2009, the plaintiff also had psychological problems and was referred to Mr McKinnon, psychologist, whom he saw 38 times between 22 December 2009 and 22 May 2012.[54]

[54]T129

78      In June 2010, Dr Muir’s treatment was scaled back as he advised there was not much more he could do for the plaintiff in the way of procedures.  He recommended conservative treatment such as physiotherapy, medication and exercises.  He told the plaintiff his condition had basically stabilised. 

79      As of July 2011, when he swore his first affidavit, the plaintiff was concentrating on trying to find some level of fitness through stretching exercises.  He had not been offered rehabilitation. His medication included Amitriptyline and Panadeine Forte, four to five tablets a day, depending on his pain.

80      The plaintiff continued to suffer from significant and chronic neck pain, which was present most of the time, and significantly restricted his daily activities.  His arms were not too bad.  His sleep was interrupted by frequent periods of neck pain.  He changed positions but then had difficulty getting back to sleep and had to get up and take Panadeine Forte.

81      During the day, the plaintiff spent a lot of time lying down, as doing so took pressure of his neck.  He experienced quite a lot of headaches.  His neck pain was aggravated by significant forms of physical activity and he had to have a lot of help from his wife at home.  He was then unsure as to in what capacity he would be able to return work as his background was basically fairly heavy and repetitive manual work.  He was then fifty-one and had only a basic education.

82      In a further affidavit of November 2012, the plaintiff gave more detail about the 1999 injury.  When he started work with the defendant in November 2005, he had made a very substantial recovery from the 1999 injury and he was able to carry out a whole range of social and recreational activities and enjoyed pretty much a normal life.

83      By 2005-2006, the plaintiff had resumed playing golf on a social basis, playing every couple of weeks or so.  He also used to teach boxing to local kids up to the age of ten in his shed at home.  He worked with two or three kids in a session on general fitness, boxing skills and use of bags.  He could use the equipment to some extent and certainly showed the kids various techniques including sparring, skipping and footwork.  He could jog, skip and spar and use a heavy bag as required, and he enjoyed this activity immensely. 

84      The plaintiff put on the gloves to show the kids how to box.[55]  He did things slowly.  In the two or three years before he started with the defendant, he was doing mostly stretching.  He did the boxing coaching before he got the tingling and numbness in his fingers in 2006.[56] 

[55]T69

[56]T67

85      These voluntary sessions had a beneficial effect on the plaintiff’s fitness. He was also then considering return to super rules football for players over forty.  The plaintiff had not played football since 1994 or 1995.[57] 

[57]T117

86      The plaintiff confirmed after his 1999 claim payments ceased, he resumed a range of activities in his private life.[58]  The plaintiff would have been rehabilitating himself and he was enjoying a pretty normal life.[59]

[58]T63

[59]T65

87      The plaintiff did not engage in boxing the whole time he was in receipt of weekly payments.[60]  It was a slow recovery with home exercise.[61]  He no longer had the boxing equipment at home.[62]

[60]T72

[61]T73

[62]T70

88      Prior to 2006, the plaintiff was not a regular golfer and was just a “hack”.  He was having a couple of games to try to rebuild and rehabilitate himself.[63]

[63]T66

89      The plaintiff agreed he was aware that he had to demonstrate the consequences of his 2006 injury are very considerable.  He is now aware of the “black hole” issue relating to the period when he is unable to sue for damages.[64]

[64]T70

90      The plaintiff did a considerable amount of painting around the house in about 2005-2006 with a little bit of help from his father-in-law and brother.[65]

[65]T25

91      Before the 2006 injury, the plaintiff was able to ride his bike, an activity he enjoyed a lot.  He now rarely rode his bike, as he found it difficult with his neck, and also he suffered from dizziness due to his medication.  He had been unable to return to any form of boxing since his 2006 injury.

92      The plaintiff believed he used to go fishing at Ararat during 2005 and 2006.  All in all, he believed he was travelling pretty well in 2005 early 2006.

93      In 2010, the plaintiff was referred to pain management at St Vincent’s Hospital, which he attended on twelve occasions until funding was ceased; however, he did not find it helped him particularly.

94      As of November 2012, there had not been much change since the plaintiff swore his first affidavit.  His medication included Avapro, Nexium to control ulcers and he also took Panadeine Forte, up to six on a bad day, with two tablets on other days, depending on how he was feeling.

95      The plaintiff continued to be treated by Dr Malekzadeh every three to four weeks.  He certified the plaintiff as having no current work capacity.  The plaintiff also continued funded by Medicare.

96      The plaintiff was then in receipt of a Disability Support Pension of $670 a fortnight.  He was struggling financially and that situation increased his anxiety.  Funding for counselling had ceased and he was seeing a counsellor under Medicare.

97      The insurer continued to pay for lawn mowing, which was done monthly, and the plaintiff’s wife did most of the housework. 

98      The plaintiff continued to experience fairly constant neck pain, although some days were better than others.  At times, he had a very severe stabbing pain in his neck which almost dropped him to his knees.  He was constantly tired and very lethargic due to a combination of chronic pain and the side effects of the medication.

99      The plaintiff did not sleep very well at all, waking up four or five times a night with sharp pain.  His neck injury severely impacted on intimate relations.

100     The plaintiff did not believe he could return to cleaning work.  He felt very tired and lethargic and in a considerable amount of pain.  He had put on a considerable amount of weight and his physical condition had deteriorated.

101     The plaintiff swore a further affidavit in September 2013 in which he described his long friendship with Les Rose.  In 2012, Mr Rose offered to take the plaintiff on a site where he was employed as a maintenance supervisor to do a few bits and pieces and basically get him out of the house.  The plaintiff got lunches, cups of coffee and performed other similar tasks.  He accepted Mr Rose’s offer because he was bored and depressed.

102     That site project lasted for about three months.  The plaintiff did not attend the site every day and he was not paid.  There was no physical work involved and he basically went along for a bit of company.    

103     In his fourth affidavit sworn on 8 October 2014, the plaintiff described his current medication regime of up to six Panadeine Forte a day when the pain is excruciating.  He had ceased Amitriptyline because of its side effects, which included dizziness.  He continues to take Avapro and Nexium.

104     Sometimes, instead of Panadeine Forte, the plaintiff now has a few beers at night to unwind.  When he takes Panadeine Forte, he has to lie down all the time as, because of his neck, his head feels too big for his body.[66]

[66]T131

105     The plaintiff continues to see Dr Malekzadeh every three to four weeks, and Mr McKinnon monthly, with funding to continue for twelve months.[67]

[67]T164

106     The plaintiff had described himself as living like a hermit for a period of time but that is not the case now.[68]   In about 2012, he did not have many friends because of his drug intake, and he was confused.  No one would come around to see him, because he was not the person he used to be.[69]

[68]T128

[69]T145

107     The plaintiff now sometimes goes to the pub, and is picked up by his mate.  He has reduced his alcohol intake since 2013, when he went to Mr McKinnon for help in this regard.[70]

[70]T135

108     The plaintiff agreed he had told Mr McKinnon on 3 April 2014 there was an argument going on in his head all the time, and he did not go anywhere.[71]

[71]T165

109     After the case is finished, the plaintiff has got to do something to motivate himself and get out of his present situation – an issue he is discussing with Mr McKinnon.[72]

[72]T173

110     The plaintiff agreed he considered himself depressed, but he had not had anti-depressant medication for some time.[73]  He thought he last had Avanza about fourteen months ago.[74]

[73]T130

[74]T134

111     The plaintiff continues to receive a Disability Support Pension of about $800 a week.  He is still worried about his finances and the lack of assistance he can give to his wife, who does the lion’s share at home.  Funding for lawn mowing has been stopped.  The plaintiff’s friends come over every couple of weeks and help mow the lawn. 

112     The plaintiff has constant neck pain, present whenever he holds his head up in a straight position.  It is painful to tilt his head in any direction other than towards his right shoulder.  His neck symptoms greatly restrict his activities every day. 

113     The plaintiff continues to experience stabbing or shooting pain from his neck to the back of his ear.  These episodes can occur one to four times a week and last for about fifteen seconds each time.  The pain then is so intense it almost drops him to his knees in agony.

114     The plaintiff’s sleep continues to be interrupted as a result of his neck pain.  During the day, he has to lie down, mainly to take the pressure off his neck and head.  He continues to have headaches.

115     In late October 2013, the plaintiff fainted during a small gathering at home for his birthday.  He hit his head on the gate and then the ground.  After he regained consciousness, the plaintiff was taken to the Western General Hospital by ambulance and discharged the following day.  He was told that the fall occurred due to his blood pressure medication.  The fall did not result in any change in his neck symptoms. 

116     The plaintiff confirmed he had had collapses on several occasions during 2014, following which he required hospitalisation.  These collapses were due to blood pressure not alcohol.[75]

[75]T135

117     While the plaintiff agreed he had problems with high blood pressure, cholesterol,[76] his liver, heart and hypertension,[77] he denied that a “myriad” of other health problems was impacting on his ability to even look for work.[78]

[76]T122

[77]T137

[78]T138

118     The plaintiff continues to be unable to return to work or obtain suitable employment because of his neck pain.  He still has a forklift licence but has not sought to have it renewed because he cannot work.[79]

[79]T27

119     The plaintiff has not looked for work since leaving the defendant’s employ.  He is registered with the CES but not looking for work.[80]

[80]T30

120     The plaintiff is not looking for work because he cannot work.  If he could do more around the house he would be doing it at least to help his wife, to try and get his marriage back.[81]  He denied he was not motivated to get back to work – he cannot work.[82]

[81]T139

[82]T171

121     In the last two years, the plaintiff has been trying to be better, especially for his family.[83]  He has not worked since 2006 because of his neck injury pain.[84]

[83]T140

[84]T175

Histories

122     The plaintiff confirmed the contents of his Claim Form dated 10 July 2006 and his declaration as to its truth.  In answer to questions whether he had ever had a personal injury claim for this or a similar injury or condition or any previous pain or disability in the area of his present injury or condition, the plaintiff agreed he had noted having previous right shoulder surgery.[85]  He agreed there was no reference to having hurt his neck in 1999 in the Claim Form.  He did not mention his neck, as he never had surgery on it.  He agreed his answers in this regard were incorrect.[86]

[85]T62

[86]T63

123     The plaintiff was not sure of the history recorded by Dr Kostos.[87]  He could not recall that doctor, let alone telling him that there was no specific incident or accident.[88]  The plaintiff’s pain at that time was shooting right up his arm and down his hand, as he demonstrated in the witness box.[89]

[87]T78

[88]T79

[89]T80

124     The plaintiff could not remember what he told Dr Kostos about the onset of his pain.  He could not see a reason why Dr Kostos would want to lie.[90]  He did not accept that he had pain and numbness in his fingers and right elbow because he had pain in different areas, as well in his neck and shoulder. 

[90]T81

125     The experts the plaintiff was seeing could not work out where the pain was coming from until after he had x-rays done.  He could not recall telling Dr Kostos he had never had prior neck problems,[91] nor could he recall telling him he had made a full recovery from a scapular injury.[92]

[91]T82

[92]T83

126     The plaintiff could not recall having denied any previous neck complaint when he saw Mr Shannon in 2008.  The plaintiff might then have been confused by a lot of drugs.[93] 

[93]T84

127     The plaintiff could not recall telling Professor Paoletti on examination in February 2011 that he had no previous history of a WorkCover or a TAC claim.[94]  He probably told him, and Professor Paoletti had not noted it.  He would not have deliberately disclosed it.  Professor Paoletti would have known about it.

[94]T94

128     The plaintiff did not know how Dr Muir, Dr Trinca and others could not know about his previous neck injury because the details would have been passed on to them through other doctors.  They must not have asked him, or had not received the reports.  He honestly did not know why Professor Paoletti had no history.[95]

[95]T148

129     Generally, the reason the plaintiff was not telling doctors of his previous neck problem was because he had had surgery on his scapula.  He did not have neck surgery.  There was the severe damage with his scapular bone sticking out of his shoulder.[96]

[96]T149

130     The plaintiff agreed he had had neck pain from 1999, and could not explain why Mr Klug noted in his report that the neck pain began in 2006.  The plaintiff did not think it appropriate to tell him about his neck when he had had surgery on his shoulder and he was emphasising his shoulder.[97]

[97]T155

131     The plaintiff thought he did not tell Mr Kossmann about his neck history because Mr Kossmann told him he had all the paperwork and his records.[98]  He probably did not tell Mr Kossmann because he did not ask him.[99]

[98]T159

[99]T162

The film

132     The plaintiff was shown being collected by a friend and driven to the Millers Inn Hotel on 26 October 2013 at 11.26am for a birthday drink.[100] 

[100]T144

133     There was 27 minutes and 39 seconds of film shown of the plaintiff at the hotel.  He walked around and looked at betting sheets on the wall and he stood at the bar buying a beer.  He was filmed walking and sitting.  He sat and had lunch and had a beer and left the hotel at 4.07pm.

134     When it was suggested to the plaintiff he did not show any restriction whilst at the hotel, he explained that the film was taken two years ago and he was getting worse.  There is a lot of pain with his neck.[101]

[101]T174

Lay evidence

135     In his affidavit sworn in August 2013, Leslie Rose, who has known the plaintiff for decades, being friends for the last three or four years, confirmed the plaintiff attended at his building site doing bits and pieces.

136     Mr Rose tends to help the plaintiff out, doing things like bringing him firewood.  The plaintiff has become somewhat of a recluse and Mr Rose has tried to encourage him to do things outside the house like attend his sons’ football games, but the plaintiff never really wants to come.  The plaintiff does not seem to like being around other people.  It has really broken him that he cannot work and provide for his family. 

137     The plaintiff’s wife, Susan, swore an affidavit on 13 October 2013.  She and the plaintiff live together but not as man and wife.  She has had to help the plaintiff every day since his 2006 neck injury. 

138     Mrs Pederson confirmed the plaintiff’s involvement in boxing at home before he was injured in 2006, and also his contribution to cleaning and other jobs around the house.

139     Since the 2006 injury, the plaintiff has complained of neck pain, and she has observed him in pain.  She now does everything around the house, and friends and neighbours assist with lawn mowing.

140     Mrs Pederson confirmed prior to his 2006 neck injury, the plaintiff painted the house by himself but he is now very limited in his ability to undertake home maintenance and other tasks.

141     Before the 1999 injury and once he had pretty much recovered from it, prior to 2006, the plaintiff used to spend a lot of time out of the house mingling and socialising with friends and going to the footy and cricket and also boxing matches.  He was active and played golf.  He enjoyed life and was happy.

142     The plaintiff does not socialise anymore, only when people come over.  He rarely wants to leave the house, mainly due to his neck pain.  The plaintiff mainly sits at home and watches the television and drinks.  She is concerned about his drinking.

143     They do not talk like they used to and the plaintiff does not have much to say in response and does not want to engage in conversation and is very negative.

144     The plaintiff’s friend, Michael Coates, swore an affidavit on 8 October 2014.  He has known the plaintiff since they were about fifteen.

145     Mr Coates confirmed the plaintiff’s involvement in boxing prior to the 2006 injury.  Mr Coates was aware of the 1999 injury.

146     The plaintiff got slowly better after the 1999 injury and recovered enough to be able to engage in social activities such as boxing, running and going to the football or out for a beer.  He was very happy when he got a job with the defendant.

147     The plaintiff is not the same as he was before his 2006 injury.  He does not want to do anything anymore.  He does not want to go out, previously having been very social. 

148     The plaintiff has complained of constant neck pain and problems sleeping since 2006.  He drinks a lot more than he used to.  He does not have any money and often complains about not being able to work.

Cervical spine investigations pre 2006

149     Following a cervical spine x‑ray of 7 October 1999, it was reported there was slight narrowing of the C5-6 disc space, and remaining disc spaces were of normal height.  There were mild degenerative changes present at the C5-6 neuro-central joints but no significant bony encroachment on the neural exit foramina noted.  The lateral view showed loss of the normal cervical lordosis which was noted may be postural as a result of muscle spasm. 

150     There was an MRI scan of the cervical spine on 10 August 2001.  At C4-5, it was reported a mild annular disc bulging and endplate osteophyte ridge formation posteriorly combined to indent the anterior wall theca to a mild degree.  At C5-6, there was central and right paracentral disc bulging in C5-6, again seen to combine with endplate osteophytic ridge formation to indent deformed theca down the cord but again without cord flattening.  There was additional right neuro-central joint osteophytosis of a mild degree producing mild foraminal stenosis.  The C6 nerve root, however, did not appear overly compressed, and the left neural exit foramen was widely patent. 

151     There was right-sided C6-7 disc protrusion of a mild degree and right-sided neuro-central joint osteophytosis combining to result in mild indentation of the ventral rootlet of the C7 nerve root.  It was noted this finding would correlate with the plaintiff’s presentation.

Investigations post 2006

152     Mr Li organised an MRI scan of the plaintiff’s cervical spine on 20 June 2006.  It was reported that there was a broadbased posterior disc bulge and right paracentral disc protrusion at C5-6 with associated endplate osteophyte formation contributing to moderate narrowing of the right C6 foramen.

153     An x-ray of 20 June 2006 showed disc spacing narrowing at C5-6 and C6-7.  Anterior endplate osteophyte formation was seen at C4-5, C5-6 and C6-7.  There was no osteophytic narrowing of the foramina.

Treaters pre 2006 injury

154     In his February 2003 report, the plaintiff’s general practitioner, Dr Malekzadeh, confirmed the referral to Mr Pianta; treatment and investigations of the plaintiff’s shoulder and complaints of persisting neck and shoulder pain; the referral to Dr Vivian with branch blocks; further investigations with a CT scan of the cervical spine; the referral to Mr Jensen and to a pain management clinic. 

155     Dr Malekzadeh noted the neck surgery booked in November 2001 was postponed because of the plaintiff’s sleep problems.  Dr Malekzadeh then described the sleep therapy and psychological problems suffered by the plaintiff in 2002, in relation to which medication was prescribed. 

156     As of February 2003, Dr Malekzadeh thought it difficult to predict whether spinal surgery would improve the plaintiff’s condition or not.  He noted the plaintiff’s reluctance to have surgery then because nobody could guarantee that it could improve his condition and also he had been through a lot of procedures, some with unpleasant complications that had affected him psychologically.

157     Dr Malekzadeh then thought for psychological improvement, attending a course to be trained for office-type work under an occupational therapist in rehabilitation would be beneficial.

158     Dr Malekzadeh reported in February 2005 that the plaintiff still suffered from neck and shoulder pain.  He had difficulty being on a computer for too long and had problems during the IT course taking notes and writing quickly, as that aggravated neck pain.

159     Dr Malekzadeh then thought a job like mail sorting would be the best option for the plaintiff, and other roles such as console operator, product examiner or despatch clerk would follow after that.  He thought stock taking and customer service may not be a good option. 

160     Dr Malekzadeh considered the plaintiff required assistance to start the chosen task from a couple of hours daily and monitoring to see how he was coping with the help of an occupational therapist and then gradually increase or change the task if needed.

161     Dr Malekzadeh noted the plaintiff was excited to start working again, while he was worried about recurrence of his severe neck pain which Dr Malekzadeh told him there was not supposed to be any lifting or heavy manual work that could aggravate his condition and he should tell his manager if that was the case.

162     Dr Malekzadeh’s clinical notes indicate that prior to June 2006, the plaintiff was last prescribed Panadeine Forte in February 2005. 

163     Mr Pianta reported in March 2011 that he first saw the plaintiff in October 1999 on referral from his general practitioner after the 1999 injury.  The plaintiff then had problems moving his neck and could not lift his left arm.

164     There were subsequent reviews in November and January 2000.  The initial diagnosis was that of rotator cuff tendonitis or impingement syndrome related to work.  Mr Pianta last saw the plaintiff on 11 July 2000, when he felt the plaintiff was capable of alternative restricted duties.

Vocational assessment pre 2006

165     A vocational assessment report was compiled on 14 July 2004 for the Victorian WorkCover Authority.

166     In order of priority, the following suitable employment options were identified – despatch clerk, stock-taker or stock clerk, product examiner, customer service consultant, console operator and mail sorter.

167     Industrial Work Conditioning Clinic reported to QBE on 23 February 2005, providing an updated labour market analysis relating to the jobs suggested in 2004 which were established, based on the plaintiff’s transferable skills and his recently completed Certificate I in Information Technology.

Treaters post June 2006

168     In a June 2011 report, Dr Malekzadeh noted that on 13 June 2006, the plaintiff informed him he had pain in his right forearm and numbness in his fingers for a week.  It started while working.  He complained of right elbow pain, as well as numbness in the right fingers, and was referred to Mr Li.

169     Dr Malekzadeh noted the June 2006 MRI scan and the referral to Mr Hunt, who carried out neck surgery.

170     Dr Malekzadeh reported that in the latter part of 2008, the plaintiff’s neck became swollen and more painful and he could not work for several weeks and was referred back to Mr Hunt.

171     In June 2009 and thereafter, Dr Muir carried out C2-3-4 medial branch blocks.  However, the plaintiff was still in pain and he could not work at all and had difficulties with his daily life. 

172     Dr Malekzadeh then thought the plaintiff did not have the capacity for pre-injury duties.  He was in constant pain and his movement was restricted.  He noted the plaintiff’s depression and anxiety as a result of his injury had compounded his health status.

173     As of April 2012, Dr Malekzadeh noted the plaintiff still suffered from neck pain, headache and insomnia with related anxiety and depression.  There had been no improvement after the neck surgery and the plaintiff constantly suffered from pain and discomfort that affected his sleep.

174     In August 2013, Dr Malekzadeh reported that the plaintiff had continuous neck pain and headaches, dizziness, nausea at times, vomiting and near fainting and lack of sleep due to neck pain.

175     As of October 2014, Dr Malekzadeh thought the plaintiff was not able to work due to a severe and constant chronic condition.  The plaintiff was suffering from anxiety and depression which made him unable to work until the condition was cured or controlled.

176     Dr Malekzadeh noted the plaintiff was working before the 2006 injury without any discomfort.  After that injury and treatment, the plaintiff tried to work but unfortunately modified duties still caused him a lot of pain and discomfort and his condition did not improve.  The plaintiff’s psychiatric condition was also on a level he could not work.  He had no capacity to work as a consequence of his work-related injury. 

177     Dr Malekzadeh could not see the plaintiff returning to work due to the severity of his injury and unsuccessful medical and surgical attempts.  He thought the plaintiff’s incapacity seemed to be permanent.

178     Mr Li saw the plaintiff on referral from Dr Malekzadeh in relation to right hand numbness and tingling and also right elbow pain in mid 2006.

179     The plaintiff complained that initially the numbness and tingling was in his thumb, index, middle and ring finger but it was now the whole hand.  He also had right elbow pain.

180     Neurological examination demonstrated diminished sensation in the right C6-7 distribution but the motor was intact.  There was no median nerve irritation of the wrist or ulnar nerve irritation, leading Mr Li to suspect that the plaintiff’s right upper limb neurology was originating from his neck.

181     On review in July 2006, Mr Li noted the x‑ray and MRI scan results.  He thought the symptoms in the right hand were corresponding to radiological findings and therefore he considered it prudent for the plaintiff to be seen by a spine surgeon.

Mr Hunt

182     The plaintiff was seen by Mr Hunt in August 2006 after he reported to Mr Li that the plaintiff was still troubled greatly by his neck pain and he was adamant he wanted surgery.

183     Mr Hunt thought the plaintiff had evidence of a C5-6 disc prolapse with right arm pain and the MRI scan had confirmed the prolapse displacing the right C6 nerve root.

184     In August 2006, Mr Hunt discussed the option of surgery with the plaintiff in the form of anterior cervical discectomy and fusion and also the risks and benefits.  The plaintiff was keen to proceed.  Funding was requested from CGU.

185     In October 2006, Mr Hunt reported to CGU that he agreed with Dr Kostos that the plaintiff may benefit from conservative treatment.  He disagreed that in each patient the natural history and conservative outcomes mirror operative intervention, as the operative intervention is very successful in the majority of patients in relieving both neck and arm pain.

186     Mr Hunt noted on the two occasions he had seen the plaintiff, he had stressed the natural history of the condition and also explained to him he could have conservative treatment.  However, the plaintiff had rejected that, and wanted to proceed with surgery.  Mr Hunt noted that was an unusual situation but it was the plaintiff’s wish.

187     Mr Hunt advised Mr Li in October 2006 the surgical procedure was uncomplicated and he would review the plaintiff in two weeks.

188     Mr Hunt then noted the plaintiff’s symptoms were completely relieved following the operation.  The plaintiff was quite anxious but Mr Hunt told him his wound was healing nicely and things would probably settle down.  An x‑ray showed the surgical cage and plate were in good position.

189     On examination in December 2006, Mr Hunt noted the plaintiff had some numbness in his fingertips, which was initially good after the surgery, but had progressively become worse the last couple of weeks.  He also had left hand symptoms. 

190     Mr Hunt asked a neurologist to perform nerve conduction studies.  Those studies indicated the plaintiff required bilateral carpal tunnel release.  Mr Hunt sought funding from CGU in March 2007 for that procedure. 

191     Having seen the plaintiff in February 2008, Mr Hunt requested funding for MRI and CT scans to further investigate his symptoms of neck pain.

192     Mr Hunt performed a right carpal tunnel release on 21 June 2008 for persistent right hand symptoms secondary to carpal tunnel syndrome. 

193     On review in July 2008, the plaintiff was tender over the left side of the neck and had a reduced range of motion. Mr Hunt then assessed the plaintiff’s condition as C5-6 foraminal stenosis with right-sided anterior cervical decompression, fusion and, secondly, right carpal tunnel syndrome.

194     Mr Hunt saw the plaintiff on 29 September 2008 with regard to his left neck pain.  A CT scan with contrast had previously been organised and did not show a cause of the swelling in the plaintiff’s neck.  Mr Hunt thought the plaintiff may have referred pain from his neck and it would be useful for him to see a pain management specialist, and therefore he referred him to Dr Muir.

195     The plaintiff then told Mr Hunt he was having difficulty financially and had been offered part-time work which did not involve much physical work as he had done in the past, which had been an aggravation.  He had not worked in the past couple of months but was keen to get back to some work and maintain some income; therefore, Mr Hunt signed the plaintiff’s return to work form on 29 September 2008.

196     Mr Hunt subsequently received correspondence from Dr Muir in June 2009, and Dr Malekzadeh, who advised that the plaintiff had experienced considerable relief after he had undergone C2-3 and C3-4 medial branch blocks.  Mr Hunt noted, interestingly, that relief appeared to be enduring and the plaintiff reported considerable relief of pressure in the back of his head.  Dr Muir advised he was happy with the idea of extending the level of blocks and would organise another session.

197     In November 2006, Dr Andrew Muir requested funding from Allianz for a series of diagnostic medial branch blocks and a cervical epidural to control the plaintiff’s pain.

198     Following that procedure in March 2009, the plaintiff’s condition became worse and it was decided to attempt to re-block him.  In a series of subsequent blocks, the plaintiff obtained intermittent prolonged relief.  However, it was clear he had profoundly sensitive muscular structures around the spine which caused him great pain on other occasions.

199     On review in late 2009, the plaintiff had to consider whether pursuing further procedural interventions was worthwhile.  His peri-operative discomfort was sufficiently intense that he decided not to pursue radio-frequency denervation. 

200     Dr Muir thought the plaintiff would present as a significant ongoing challenge to management and may well be best suited to be treated in a pain management program.  He thought the plaintiff predominantly suffered from nociceptive referred pain in the neck but also may have developed a neuropathic central sensitisation component.

201     Dr Muir then thought the plaintiff had a reduced capacity for work and that he might be suitable for part-time work in a different position that did not involve repetitive lifting of weights.  Given the plaintiff’s age, training and experience, there were considerable doubts as to whether that was a realistic practical possibility.  Dr Muir would be very surprised if the plaintiff was capable of lifting weights repetitively over 2 kilograms.  Further, the treatment of his analgesic symptoms produced significant central nervous system side effects.

202     The plaintiff was reviewed in the Barbara Walker Pain Management Clinic (“the Clinic”) by Dr Trinca in February 2010.  She had a history of a right shoulder injury in 2000 but no details of any neck problem experienced by the plaintiff prior to 2006.

203     Dr Trinca proposed a management plan, during which the plaintiff underwent individual physiotherapy treatments.  He was then taking Lyrica, 75 milligrams at night, but having side effects.

204     On a case review in July 2010, it was decided the plaintiff had made little progress with physiotherapy and he was discharged from the Clinic because he did not want further intervention.  Funding for psychological services was declined by Allianz. 

205     The plaintiff reported there had been little change in his pain, although he felt more relaxed but unfortunately that had not translated to an increase in function.

206     Dr Trinca did not anticipate the plaintiff would return to his previous employment because he no longer had a job available.  She noted his alcohol use was very high and it was suggested that issue be addressed before any attempt was made to undertake a pain management program but that was not further explored as funding was cut. 

207     The plaintiff was originally referred to Ian McKinnon, psychologist, in November 2009 by Dr Malekzadeh.  Fifty-five sessions were provided between December 2009 and September 2014.

208     In his 2014 report, Mr McKinnon noted the plaintiff had suffered workplace injuries around 1999 but he had recovered physically and had been able to resume physically demanding work and there was then the 2006 injury.

209     Whereas the plaintiff was formerly a very busy and physically active man, Mr McKinnon noted he had now become a relative hermit, socially isolated, and his ability to function physically had been drastically degraded.  The plaintiff had collapsed suddenly on several occasions and suffered severe head and facial injuries requiring hospitalisation.

210     Mr McKinnon diagnosed a Depressive Mood Disorder, substance abuse and a generalised Anxiety Disorder.  He thought the plaintiff’s very poor psychological state was a direct response to psychological injuries he suffered in the defendant’s employment. 

211     Mr McKinnon considered the plaintiff currently was not fit for work in any capacity and unlikely to be able to work in any capacity in the future.  He did not believe the plaintiff would ever be well enough to participate in a return to work program and he would remain unemployable and his prognosis was very poor.

The Plaintiff’s medico-legal evidence – post 2006 injury

212     Mr Klug examined the plaintiff in May 2010.  The plaintiff told him when he suffered injury in 1999, he was in good health.  He had been involved in various sporting activities and suffered some relatively minor injuries, from which he had always made a full recovery. 

213     After the 1999 injury, the plaintiff continued to have significant symptoms and was unable to resume work.  He had shoulder surgery.  The plaintiff told Mr Klug he was off work for about eighteen months and then resumed employment in a different area, working as a cleaner for the defendant.

214     The plaintiff did not tell Mr Klug that Mr Jensen proposed to operate on his neck in 2001.

215     The plaintiff told Mr Klug he was able to cope satisfactorily with the demands of his work and some time in 2006, he began to suffer from neck pain which he felt may relate to the repetitive nature of his activities.  This was not associated with any specific incident and occurred gradually, leading thereafter to a fusion in October 2006.

216     Mr Klug thought the plaintiff was suffering from aggravated cervical spondylosis which had only partially responded to treatment, including surgery.  This disorder was responsible for neck pain, abnormal neck posture, some restrictions of movement related to pain, but however no evidence of neurological involvement.

217     Doing an apportionment, Mr Klug thought the initial symptoms following injury were most likely related to a disorder of the right shoulder for which the plaintiff received complex treatment.  Mr Klug felt there was enough evidence to suggest the plaintiff’s complaints at that time were largely related to that condition with possibly some component related to the neck. 

218     Mr Klug noted there was no doubt imaging performed shortly after that time revealed degenerative changes in the neck.  Although they were significant, such changes could have been relatively symptomatic.

219     Mr Klug felt it most probable that the duties with the defendant significantly aggravated pre-existing degenerative disorder of the cervical spine, with such aggravation leading to the emergence of symptoms of considerable severity and ultimately related to the need for surgery.

220     Despite neck surgery, the plaintiff’s neck condition had not substantially resolved and it was still being contributed to materially by work.  Mr Klug thought the plaintiff had genuine and substantial symptoms and did not believe he could return to pre-injury work.  He thought the plaintiff could do some sedentary activity not placing any undue strain on his neck but it would be difficult for him to find suitable employment.

221     Mr Klug thought up-to-date imaging might be appropriate.  He considered it would difficult for the plaintiff to undertake physical activities requiring repeated lifting, bending and twisting, which would aggravate his condition.

222     When Mr Klug reviewed the plaintiff in March 2011, he thought there appeared to have been little change in his condition. Mr Klug saw no reason to change his views as to causation, future treatment and the plaintiff’s capacity for employment.

223     On further re-examination in August 2013, the plaintiff advised there had been little change in his condition.  Mr Klug then thought the plaintiff suffered from constant pain in the cervical region related to an underlying physical disorder of the cervical spine despite treatment including surgery.

224     When Mr Klug re-examined the plaintiff in July 2014, the plaintiff reported there had been certainly no improvement in his condition and possibly his symptoms were a bit more severe.  Mr Klug again confirmed his earlier views.

225     Dr Sutcliffe, occupational physician, first examined the plaintiff on 20 September 2012.  In terms of past history, he told her that he had a previous injury to his right shoulder and required surgery in 1999.  He recovered well from this and then returned to work on normal duties as a cleaner, undertaking part-time then full-time duties.  Previously, he had been otherwise well.

226     Dr Sutcliffe noted the plaintiff’s work with the defendant and treatment thereafter.

227     On examination, there was muscle spasm present on the right.  The plaintiff was tender to palpation in the cervical spine area.  There was restricted cervical spine movement.  There was no abnormality in the power of either upper limb and in particular, no weakness at C6 or C7.  Reflexes were normal and there was no alteration to sensation.

228     Dr Sutcliffe thought, following this history and the examination, the plaintiff sustained onset of disc derangement at C5-6 with associated right C6 radiculopathy as a result of heavy work with the defendant. 

229     Dr Sutcliffe considered the plaintiff had no capacity to undertake manual handling occupations now or into the foreseeable future.  Taking into account his past history of occupations, age, impairment and training, she thought the plaintiff had no capacity for any employment of an alternate nature.

230     Dr Sutcliffe re-examined the plaintiff in September 2014.  He then described constant neck pain and waking at night every night with neck pain.

231     On examination, there was again muscle spasm in the cervical spine and limitation of movement.  Upper limbs were normal.

232     Dr Sutcliffe noted the plaintiff had been off work for a prolonged period and was in receipt of a Disability Pension.  Further, he had developed onset of an Adjustment Disorder with Depression and Anxiety, with considerable distress and symptoms. 

233     Dr Sutcliffe confirmed her earlier view as to the plaintiff’s lack of employment capacity and in addition, she thought his psychiatric injury resulted in a very substantial adverse impact on his capacity for work, with poor concentration and memory and difficulty with problem solving.  She did not believe the plaintiff could present in a sufficiently reliable or productive and efficient manner to the satisfaction of an employer now or into the foreseeable future.  She did not think he had any capacity to undertake any of the employment suggested by WorkFocus in 2008 and Nabenet in 2013 and this situation was permanent.

234     Mr Kossmann, orthopaedic surgeon, examined the plaintiff in October 2014.  The plaintiff told him he had worked in very physically demanding work all his life.  At Ready Force, he suffered an injury to his right shoulder and neck in 1999 when moving boxes from a container and one of the boxes fell and injured his shoulder.

235     The plaintiff told Mr Kossmann of subsequent investigations of his shoulder and neck and undergoing an arthroscopy of his right shoulder in May 2000.

236     The plaintiff told Mr Kossmann he had ongoing pain and movement restrictions in his right shoulder and had conservative treatment.  He started to suffer from neck pain and underwent a radio-frequency denervation in April 2001, and at that time, he had also developed psychological issues and was being treated by a psychologist.

237     Mr Kossmann noted the MRI scan of the cervical spine of 10 August 2001.

238     The plaintiff complained his right shoulder did not improve and he went to see Mr Hoy, who operated on his shoulder again in 2002.  About a year after the second shoulder surgery, the plaintiff’s shoulder improved and he was seen by a number of medical practitioners and it was felt he was able to return to work. 

239     The plaintiff was referred to IWCC in July 2004 and found to be suitable for a number of jobs.  He then took a position with the defendant in November 2005, where he worked for about 27.5 hours a week. 

240     In about June 2006, the plaintiff began to experience pins and needles in his right arm and he was subsequently referred for investigations and later, fusion surgery.

241     Mr Kossmann diagnosed aggravation of discogenic pain of the cervical spine on the basis of pre-existing degenerative changes; anterior cervical discectomy and fusion at C5-6, slight movement restrictions of the right shoulder on the basis of rotator cuff pathology; carpal tunnel syndrome on the right, and psychiatric injury.

242     Mr Kossmann noted the 1999 injury and the interventions to the shoulder, with the shoulder improving and the plaintiff starting to work again from November 2005 as a cleaner until the onset of pins and needles in his right arm.

243     Mr Kossmann thought the prognosis was poor, given the ongoing significant cervical spine pain, and recommended further investigations.

244     Mr Kossmann thought the plaintiff had no work capacity, noting he had ongoing cervical spine pain which affected all aspects of his life.  He thought the plaintiff may regain some work capacity; however, that would depend very much on further investigations and treatment (referral to an orthopaedic surgeon or a neurosurgeon).

245     Mr Kossmann thought the plaintiff was not able to undertake prolonged driving; lifting in excess of 5 kilograms; reaching above head height on a repetitive basis; performing repetitive movements of his neck; constant bilateral upper limb use or washing dishes on a repeated basis or prolonged typing at a keyboard.  He thought the plaintiff was not able to undertake any work where he had to move his neck either in extension or flexion, look to the right or left or bend to the right or left.  He noted the plaintiff had his head in a functional torticollis to the right, most likely pain induced.  In his view, on a permanent basis, the plaintiff had no capacity to work or return to his pre-injury employment.

246     Mr Kossmann did not believe the plaintiff would be able to work in the identified work options provided by Work Focus and Nabenet. He noted the plaintiff’s problems moving his head would cause serious safety issues.  The plaintiff would be in danger of hurting himself or even causing harm to other co-workers.

Occupational therapy

247     In an occupational therapy report on activities of daily living in May 2008, Ms Dianne Porter concluded that it would be unsuitable for the plaintiff to resume work in any field of work requiring repetitive fine hand tasks, as he did not have the functional work capacity to do those duties.  That would preclude computer-based duties for more than infrequently based tasks unless a voice activated computer was installed. 

248     In Ms Porter’s opinion, work duties of a light physical demand would be suitable for the plaintiff.  If his symptoms were better controlled, he would be likely to be capable of safely working eight hours, five days a week, in future and he might need to be in a more moderated environment rather than outdoors.

Vocational evidence

249     Suzanne George, occupational therapist, prepared a vocational assessment for Evidex in June 2011. 

250     Ms George concluded no recognised occupation in the open labour market for which the plaintiff was likely to qualify represented suitable employment and that condition would continue for the foreseeable future. 

251     Ms George obtained a history of a right shoulder injury in 1999 for which the plaintiff required surgery.  She noted in 2005, the plaintiff secured full-time, unrestricted employment as a commercial cleaner and was working in that capacity at the time of his injury.  She also noted the plaintiff returned to part-time alternate duties in October 2007, which included sorting bills and accounts, filing and photocopying and faxing.  He returned to part-time restricted cleaning duties which were self paced and included picking up rubbish with a mechanical device, sweeping and emptying bins.  He experienced increased neck pain and ceased work in June 2008.

252     Ms George also concluded the provision of occupational rehabilitation and or retraining in the future was unlikely to lead to a suitable recognised occupation in the open labour market for the plaintiff.

253     Ms George provided a supplementary vocational assessment on 9 October 2012.  She noted that since her previous interview with the plaintiff on 31 May 2011, there had been no significant change in his circumstances that would impact on his vocational options.

254     Ms George provided a further supplementary report in August 2014.  In her view, none of the jobs suggested by Nabenet in September 2013 were suitable for the plaintiff.

Surveillance

255     There was 27.5 minutes of film taken of the plaintiff on 26 October 2012 which was shown.  In June 2008, and twice in November 2012, the plaintiff was briefly sighted and not filmed.[102]

[102]T191

The Defendant’s evidence

The plaintiff’s treaters pre 2006

256     On 11 April 2001, Dr David Vivian, musculoskeletal physician, sought authorisation with a view to performing cervical medial branch blocks in relation to ongoing work-related neck pain.

257     The plaintiff was booked into the Epworth Hospital with a diagnosis of right brachial neuralgia with a planned C5-6, C6-7 anterior fusion on 28 November 2001.

258     That surgery was postponed due to the plaintiff appearing to have obstructive sleep apnoea that could be dangerous in the post-operative period.  Thereafter, the plaintiff had treatment, trying a nasal CPAP under the supervision of Dr Johns.

259     Mr Hoy reported in February 2002 to CGU as to the shoulder surgery undertaken by him on 23 January 2001.  Four to six weeks later, the plaintiff complained of neck pain, in particular, and headaches which concerned him greatly and caused a referral to Dr Vivian, who had a sub-special interest in spinal derived pain.  Dr Vivian undertook injections aimed at trying to eradicate the pain. 

260     Mr Hoy last saw the plaintiff on 4 April 2001.  He thought the likelihood was that the plaintiff would continue to experience pain until such time as the Pain Syndrome and his spinal derived pain was resolved.

261     Mr Jensen first saw the plaintiff on referral from Dr Malekzadeh in July 2001.  The plaintiff then told him of the 1999 injury and experiencing pain in his neck and shoulder region shortly thereafter.

262     The plaintiff described right-sided neck and shoulder pain radiating down the length of his arm, terminating in the middle and ring fingers, which in turn were the seat of a tingling sensation.

263     Mr Jensen diagnosed right brachial neuralgia due to nerve root irritation. On a number of subsequent occasions, he discussed with the plaintiff the complications of surgery.

264     Later that month, Mr Jensen wrote to NZI, advising the plaintiff was suffering from right brachial neuralgia, suggestive of cervical intervertebral disc disease, and he sought funding for discography and an MRI scan.  The following month, he sought funding for a two-level anterior cervical discectomy and fusion.

265     Thereafter, the plaintiff’s C5-6 C6-7 anterior fusion surgery was booked in for 28 November 2001 at Epworth Hospital.  Before that date, Dr Vivian had reviewed the plaintiff in April 2001 in relation to ongoing work-related neck pain, and sought authorisation for cervical medial branch blocks and also a radio-frequency denervation.

266     The next review by Mr Jensen was for medico-legal purposes in July 2003.  The plaintiff then reported that there had been no change in his longstanding neck and right upper limb symptoms, with pain continuing to radiate down the length of his arms to the middle digit.

267     Mr Jensen noted surgery on the spine was offered on the understanding the outcome was uncertain.  It was deemed unsafe to proceed because of the plaintiff’s sleep problems.  They had been treated, but the plaintiff had had complications and, understandably, was now very reluctant to undertake any further surgery and there was no certainty of outcome – a course Mr Jensen thought was perfectly reasonable.

268     Mr Jensen then thought, if the plaintiff was right-handed in manual work, his prospects for employment were poor, particularly when he continued to have pain.

269     The plaintiff was seen by Dr Widjaja, orthopaedic surgeon, at Epworth Hospital in January 2002 on referral from Dr Malekzadeh. 

270     The plaintiff then continued to complain of neck pain radiating down his right arm.  He also described some paresthesia in the fingers, particularly the ring and middle fingers. 

271     Dr Widjaja diagnosed chronic neck and shoulder pain with some signs consistent with radiculopathy, particularly at C7.  He noted the plaintiff was currently awaiting funding approval for his CPAP so he could have cervical surgery.

272     Ms Camille Folley, psychologist, reported in March 2004 that the plaintiff started counselling in August 2001 for treatment of anxiety and depression. 

273     The plaintiff told her about his shoulder problem and two lots of surgery and that he continued to have shoulder and neck pain leading to a referral to Mr Jensen for a further opinion.

274     Ms Folley thought the plaintiff continued to suffer from the effects of major depressive disorder and at times, he had indicated suicidal ideation.

1999 claim documentation

275     The plaintiff requested conciliation on 15 March 2004 following a decision to terminate his weekly payments of compensation in early 2004.

276     In a handwritten letter, the plaintiff advised he totally disagreed with the decision made to stop his weekly payments, and also disagreed with the loss of entitlement to medical and like expenses and his capacity for work.  The plaintiff advised he needed help to find suitable work because of his physical injury and pain.  He was currently seeing IWCC to help him find suitable work but he thought it was totally unfair to stop his payments before he found suitable work.

277     The plaintiff advised he required support from his general practitioner and psychologist to help him get back to work because he struggled with pain and depression very badly.  He needed his medication, such as Panadeine Forte for pain, and Avanza to sleep and for depression, just to get through the day.  He was also worried about trying to work, as his condition might not hold up for full-time work.

Treaters post 2006

278     Dr Malekzadeh reported to Allianz on 13 July 2009.  In that report, he gave details of the 1999 neck and shoulder injury and subsequent treatment.  He referred to the shoulder surgery and Mr Jensen’s diagnosis in July 2001 of right brachial neuralgia and nerve root irritation and his suggestion of cervical surgery.  He noted treatment for sleep apnoea continuing to 2002.  In 2004 and 2005, there was a referral for counselling and the prescription of Avanza for depression.

279     Dr Malekzadeh noted the plaintiff’s attendance on 13 June 2006, when he complained of right elbow pain as well as numbness in his fingers for three weeks.

280     Dr Malekzadeh noted it seemed the 2006 injury happened when at work when pain in the right arm and neck started and the plaintiff never had it before, as he reported.  He thought the plaintiff did not seem able to do his pre-injury duties and he needed an OT assessment to find out what he could manage to do. 

281     Mr Hunt reported to CGU in April 2007.

282     In July 2006, the plaintiff told him of neck and right arm pain since 7 June 2006.  He advised Mr Hunt he had a scapular injury which was surgically treated by Mr Hoy in 2002.

283     Mr Hunt made an assessment of a right C6 radiculopathy from foraminal stenosis of the right C5-6 foramen.  Conservative treatment was suggested, together with a nerve root sleeve injection, but the plaintiff was adamant he wanted surgery. 

284     Following surgery for the radicular pain on his arm, Mr Hunt saw the plaintiff on 1 December 2006, when he was complaining of tingling in the medial nerve distribution of both hands.  Subsequent testing revealed mild right carpal tunnel syndrome.

285     Mr Hunt thought the plaintiff was not suitable for employment, as he was still recovering from neck surgery and he had quite significant symptoms of right carpal tunnel syndrome.  He thought the plaintiff’s incapacity was expected to resolve if he had right carpal tunnel release.  

286     Mr Hunt disagreed with Dr Kostos that in each patient the natural history and conservative treatment outcomes mirror operative intervention, as operative intervention is very successful in the majority of patients in relieving both neck and arm pain

287     Ian McKinnon noted he first saw the plaintiff in November 2009 on referral from Dr Malekzadeh. 

288     Mr McKinnon was informed the plaintiff suffered spinal injuries in October 1999 whilst working as a cleaner with Ready Force.  His injuries led to spinal surgery and ongoing neck problems which were the basis for his chronic pain and physical incapacity. 

447     Further, the plaintiff failed to give any history of previous cervical injury or symptoms to psychiatrists, Dr Weissmann, Dr Entwisle and also Professor Owen.

448     It was submitted it was not an answer to say that the plaintiff was a poor historian or that the doctor probably did not ask him, or that he was more worried about his shoulder, or he could not understand why he would have said that or because he did not have neck surgery.

449     It was submitted on the defendant’s behalf that the plaintiff was alive to the issues in the case; that he had to prove “very considerable” consequences; that he knew about the black hole, and when asked if he knew Les Rose, he replied “I know where you’re going with that”.[110]

[110]T169

450     Further, it was submitted the video surveillance did not demonstrate a seriously disabling neck condition.[111]

[111]Papamanos v Commonwealth Bank of Australia [2014] VSCA 167

451     In response, it was submitted on the plaintiff’s behalf that he withstood a lengthy and searching cross-examination which lasted well over a day in Court.  His recollection of events was at times poor, which he put down to the effects of psychotropic medication.[112] 

[112]T84-85

452     Further, it was submitted the plaintiff’s manner under cross-examination was candid, genuine and polite – a submission I accept.

453     I also accept the plaintiff was unshaken and remained steadfast to the essence of his case – that being in general terms, he had substantially recovered from the 1999 injury when he started work with the defendant on 1 November 2005 and that thereafter, there were significant changes in his life.

454     I accept that the plaintiff’s evidence as to the central issue of his application was corroborated by QBE’s letter to him regarding the 1999 injury, which stated:

“You are no longer incapacitated for work as a result of the injury sustained on 4 October 1999 being right shoulder and neck pain.”

455     The plaintiff’s evidence was further corroborated by the absence of any complaint of neck and right arm symptoms to Dr Malekzadeh from 2 August 2005 to 13 June 2006.

456     Counsel for the plaintiff also relied upon Mr Simm’s view as to the plaintiff’s recovery from the 1999 injury, the unchallenged evidence of the lay witnesses relied upon by the plaintiff and the unchallenged vocational assessments of the plaintiff carried out in 2008 and 2012.

457     Further, it was submitted that the relatively short video shown of the plaintiff’s activities on the one date when surveillance had been conducted over more than four years from 24 June 2008 to 28 November 2012, showed the plaintiff simply having a few drinks with friends at a local hotel on his birthday, which showed nothing inconsistent with his claim, and genuine attempts to get back to work.

458     In my view, the level of activity shown on the film was not inconsistent with the plaintiff’s evidence as to his pain and restriction.

459     Counsel for the plaintiff submitted, overall, the plaintiff presented as a man who, despite life’s challenges, remained stoic in his approach to get on with his life as best as he was able within the constraints of his workplace injury. 

460     Clearly the defendant’s attack on the plaintiff’s credit essentially related to his failure to disclose his prior medical history.

461     I accept this point has limited merit, because, at the end of the day, the plaintiff had cervical spine surgery after the 2006 injury, in circumstances where Mr Simm thought he had fully recovered from the 1999 injury.  Mr Hunt, who was not cross-examined, operated because he thought it was appropriate to do so. 

462     Further, when Mr Troy examined the plaintiff in June 2010, he knew of the 1999 injury and the fact that the plaintiff had been booked for surgery with Mr Jensen in 2001, having previously been given this history by the plaintiff.  He also had the pre-2006 documents forwarded to him by Allianz.

463     Having this information, Mr Troy still assessed the plaintiff as having sustained a C5-6 injury with a fusion at that level and, as a consequence, the plaintiff’s s98C impairment benefits were accepted by Allianz.

Organic basis

464     Save for Mr Simm, who thought the plaintiff was suffering from a cervicobrachial Regional Pain Syndrome with non-organic and or psychological features, I accept the preponderance of medical opinion is that the plaintiff’s cervical condition has a substantial organic basis.[113]

[113]T214 – concession by the defendant pathology present and surgery; Meadows v Lichmore Pty Ltd [2013] VSCA 201

Pre-existing condition

465     In this case, where there is a pre-existing neck condition, I must consider what the evidence discloses as to the plaintiff’s condition prior to the 2006 injury and determine whether the additional impairment resulting therefrom is serious and permanent.

466     In Petkovski v Galletti,[114] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[114]Supra

467     This approach was approved by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (trading as Arnold Webbing Australia) v Filipowicz.[115]  

[115](2012) 34 VR 309 (4 April 2012)

468     As counsel for the defendant submitted, the plaintiff underwent considerable treatment for his neck following the 1999 injury.

469     After initial conservative treatment, Mr Jensen arranged for the plaintiff to undergo a two-level anterior cervical discectomy in November 2001 which did not proceed due to the plaintiff’s sleep apnoea.

470     Further, in 2003 and 2004, the plaintiff complained to a number of medico-legal examiners of ongoing significant right-sided neck and shoulder problems.  These examiners also noted restrictions complained of by the plaintiff at that time.[116]  The Konekt household assessment of December 2005 was also relied upon in this regard. 

[116]August 2003 – Mr Jensen; February 2004 – Mr Carey; July 2003 – Dr Kwong and the Medical Panel in May 2004

471     The plaintiff was taking up to eight Panadeine Forte a day until February 2005.

472     It was submitted there were significant work consequences following the 1999 injury.  The plaintiff was off work for more than six years and did not return to any of the strenuous or heavy employments that he claimed he had previously been engaged in.  It was submitted the work with the defendant was not full time and it was not heavy.

473     Further, the defendant rejected the plaintiff’s claim that he resumed activities, such as boxing, in the window after payments of compensation for the 1999 injury ceased in April 2005.

474     Whilst there was clearly a significant level of neck and shoulder complaints up to 2004, I accept there was improvement thereafter.  It is notable that the referral to Mr Jensen in August 2003 was for medico-legal purposes, not for treatment. 

475     Immediately prior to June 2006, the plaintiff had sufficiently recovered from the 1999 injury to the point where he was able to get back to work and resume a large part of his life.[117]

[117]T88

476     As of March 2005, the insurer thought the plaintiff was no longer incapacitated for work as a result of the 1999 injury and payments were terminated.

477     Although his recollection in this regard was not clear, the plaintiff had been deemed fit to work in a number of jobs by vocational assessors in the 2004 and 2005.

478     Significantly, the plaintiff had managed to return to cleaning duties by November 2005.  His evidence was unchallenged as to the relatively physical nature of this work which caused an aggravation of his previous neck symptoms.

479     Further, I accept the plaintiff was working a minimum of 27.5 hours per week at the time of injury.  He noted overtime on his Claim Form, although this was not noted by the defendant at that time.  The plaintiff also told Dr Kostos in July 2006 that he was working Saturdays and Sundays.

480     During this time leading to the 13 June 2006 complaint, the plaintiff did not require any painkilling medication, having last been prescribed Panadeine Forte in February 2005, nor had the plaintiff had the need to seek any medical treatment in relation to his neck since early 2005. As Dr Malekzadeh noted, prior to the 2006 injury, the plaintiff was working with the defendant without any discomfort.

481     I do not accept this was the situation because funding for treatment had ceased, as counsel for the defendant asserted.[118]  Consistent with the return to work, I accept the plaintiff’s condition had improved and he did not require ongoing treatment after early 2005.

[118]T214

482     The plaintiff’s evidence as to his boxing and other activities, such as fishing and bike riding prior to the 2006 injury, was unchallenged and corroborated by his wife and friend, Michael Coates, neither of whom were required for cross-examination.[119]

[119]T227- defendant accepts some corroboration of boxing

483     Immediately before suffering the 2006 injury, I accept the plaintiff had a demonstrated capacity for physical work, albeit with some restrictions relating to heavier manual work relating to the 1999 injury.  He was able to work significant hours without the need for medication or other treatment, and he had resumed boxing and was generally more active, having painted the house in 2005-2006.

484     The plaintiff was able to resume daily living, and then, all of a sudden, as a consequence of that period of renewed work, it got too much,[120] as his wife and Mr Coates confirmed.

[120]T91

485     The pre-2006 situation has changed significantly as a result of the 2006 injury, following which the plaintiff underwent cervical surgery.

486     The Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[121] considered what was involved in a serious injury from a pain and suffering perspective.  As Maxwell P stated:

“The evidentiary basis of the pain assessment will ordinarily comprise the following: (a)  what the plaintiff says about the pain (both in court and to doctors).”[122]

[121]Supra

[122]At paragraph 11

487     I accept that from about mid 2006, the plaintiff has continued to suffer constant neck pain, the extent of which increases with activity.  Further, a number of times per week, he experiences stabbing or shooting pain from his neck to the back of his ear, the intensity of which almost drops him to his knees in agony. At times, he has to lie down during the day to relieve this pain and pressure on his neck.

488     The plaintiff’s condition required surgery in October 2006.  Whilst Mr Hunt initially thought the plaintiff’s symptoms were completely relieved thereafter, and right carpal tunnel later was successful, he still referred the plaintiff to pain management with Dr Muir.

489     The plaintiff underwent a series of diagnostic blocks and an epidural steroid injection around his neck. Save for one block that gave limited relief, other procedures were not successful and the plaintiff declined radiofrequency denervation which was offered to him.

490     The plaintiff’s continues to require significant amounts of painkillers daily.

491     Whilst the plaintiff has a number of other medical conditions, including a propensity to have syncope attacks, causing him to fall, hypertension, hypercholesterolaemia, osteoarthritis and gastro-oesophageal reflux disease, I accept that as a result of his cervical condition, the plaintiff no longer has the capacity for physical work. 

492     Post neck surgery, the plaintiff attempted to return to work but was never able to resume normal cleaning duties.  He worked limited hours in the office and as a truck jockey in what he described as very light made up jobs.

493     Although Mr Hunt cleared the plaintiff for work with restricted lifting and overhead activity in September 2008, he did so at the request of the plaintiff, who was then having difficulty financially and had been offered part-time work which did not involve much physical work.

494     However, the plaintiff was unable to cope with even the lightest work and has been unfit for work since leaving the defendant’s employ in 2009.

495     A range of jobs have been suggested as being suitable for the plaintiff following vocational assessments in 2008 and 2013.  Most recently, Nabenet suggested jobs such as security officer, despatch clerk/warehouse administrator, process worker, parking inspector and quality control/process worker were appropriate.

496     Cross-examination did not address the plaintiff’s ability to undertake the suggested employment options, concentrating mainly on the plaintiff’s credit and his neck condition prior to the 2006 injury.[123]

[123]T241

497     Much of the medical opinion as to the plaintiff’s work capacity is outdated and of limited assistance in assessing his capacity as at the date of hearing.

498     Accordingly, I propose to deal with the more recent opinions.

499     Whilst acknowledging the presence of significant psychological problems, Dr Malekzadeh, who has treated the plaintiff for many years, considers the plaintiff is permanently incapacitated for work due to his neck condition alone.

500     Medico-legal examiners relied upon by the plaintiff have come to a similar conclusion.

501     Following his most recent examination in July 2014, Mr Klug thought the plaintiff would be unable to work as a cleaner, even part time, due to his neck condition.  It was conceivable the plaintiff could undertake some of the activities involved in the suggested jobs but he was concerned the plaintiff’s pain would be a very adverse factor in enabling him to perform the tasks in a regular and consistent manner. The plaintiff could do some sedentary activity involved in the jobs suggested by Nabenet, not placing any undue strain on his neck, but it would be difficult for him to find suitable employment.

502     Whilst also noting psychiatric factors, following examination in September 2014, Dr Sutcliffe confirmed her view that the plaintiff had no capacity for work as a result of his injuries, taking into account his age, background, education, past work experience and the nature of the injury. She did not think he had any capacity to undertake any of the employment suggested by Nabenet, and this situation was permanent.

503     In October 2014, Mr Kossmann thought the plaintiff had no work capacity, noting he had ongoing cervical spine pain which affected all aspects of his life.  He thought the plaintiff may regain some work capacity; however, that would depend very much on further investigations and treatment.

504     Mr Kossmann imposed a wide range of restrictions on any future work undertaken by the plaintiff and he did not consider the plaintiff would be able to work in the work options identified by Nabenet.

505     Occupational therapist, Suzanne George, who has reported on a number of occasions, most recently in August 2014, concluded there was no recognised occupation in the open labour market for which the plaintiff was likely to qualify that represented suitable employment and that condition would continue for the foreseeable future.  In her view, none of the jobs suggested by Nabenet were suitable for the plaintiff.

506     Save for the examination by Mr Simm in October 2012, now almost two-and-a-half years ago, the defendant has not arranged for any examinations of the plaintiff since 2010.  Obviously, Mr Simm did not have available to him the 2013 Nabenet report to comment on the plaintiff’s capacity to work in the jobs identified.

507     Mr Simm noted that he could not ignore the plaintiff’s complaint of ongoing severe pain despite surgery and he did not believe the plaintiff had the capacity to do physical work.

508     Commenting on the jobs suggested by Work Focus in 2008, Mr Simm thought the vocational suggestions would be better undertaken by specialists in the management of chronic pain and psychiatry.  From a purely physical point of view, he thought the plaintiff would be able to undertake appropriately modified work as a security officer or warehouse administrator, providing he was not required to undertake strenuous activities with his upper limbs.  Work as a train driver may be problematic because of the painful apparent restriction of cervical movement which could reasonably relate to the surgically-treated degenerative cervical pathology.

509     Taking into account the plaintiff’s evidence, the unchallenged evidence of the lay witnesses and the up-to-date medical evidence, I am satisfied that as a result of his neck condition, the plaintiff does not have a capacity for suitable employment, and that situation is permanent.

510     In addition to the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

511     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings. 

512     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

513     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

514     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

515     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[124]

[124]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]

516     No figures were put by either counsel in this regard.  Counsel for the plaintiff submitted that the plaintiff would suffer the requisite loss of earning capacity of 40 per cent as he had no capacity for work. The defendant focussed on the plaintiff’s pre-2006 injury condition, asserting that the plaintiff’s present situation related thereto, not to the 2006 injury.

517     The limited wage details indicate that, at the time of injury, the plaintiff was earning $462 per week.  Any overtime worked on Saturday and Sunday was in addition to this figure.

518     Having found the plaintiff does not have a capacity for suitable employment, I am satisfied that he has suffered the requisite loss of earning capacity.

519     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

520     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

521 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd.[125]

[125][2009] VSC 454

522     Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.

- - -