Petkoski v Lawstrane Pty Ltd
[2011] VCC 280
•17 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02908
| GEORGE PETKOSKI | Plaintiff |
| v | |
| LAWSTRANE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 4 and 7 February 2011 |
| DATE OF JUDGMENT: | 17 February 2011 |
| CASE MAY BE CITED AS: | Petkoski v Lawstrane Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 280 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application under s.134AB Accident Compensation Act 1985 – serous injury claimed for serious impairment to function of low-back – leave granted for serious injury for loss of earning capacity and pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with | Rose Mary Brondolino & Co |
| Mr R Lawson | ||
| For the Defendants | Mr P B Jens | Thomsons Lawyers |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant on 14 December 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the low-back.
6 The plaintiff relied upon two affidavits, sworn 3 March 2010 and 3 February 2011. The plaintiff and Dr Waid were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant on 14 December 2004.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d)
under s.134AB(38)(c) of the Act, an impairment or loss of body function, in this case the pain and suffering or loss of earning capacity, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked, and
as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. …”[5]
[4] [2009] VSCA 181
[5] Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendants informed the Court that the level of the plaintiff’s incapacity was in issue. The defendants submitted that the plaintiff had a greater physical capacity than had been demonstrated or conveyed to the medical practitioners he had consulted for treatment or medico-legal purposes. Further, the defendants submitted that the plaintiff was capable of suitable employment.
The Plaintiff’s Evidence
15 In his first affidavit, sworn 3 March 2010, the plaintiff deposes that:
•
He was born in Macedonia on 15 February 1950. He attended school for ten years, leaving at the age of sixteen. He then assisted his family at home doing rural work. Between 1969 and 1971, he undertook compulsory military service.
•
On 17 March 1972, he migrated to Australia to join his brother and lived in Newport, Melbourne. In 1974, he married. His son was born in 1976 and his daughter was born in 1977. His wife worked until 1986, at which time she was diagnosed with schizophrenia, and she has not worked since.
•
On 21 March 1972, he commenced work at a meatworks in Footscray, working as a general labourer in the abattoirs, seven days a week. In 1973, he was trained as a boner. He still received the same wage as a general labourer, but worked less hours. He was in constant employment as a boner until the date of the accident.
•
For the years preceding the injury, his usual shift commenced at 6.30 am until 11.00 am, but he could work through until 4.00 pm if there was more meat delivered. He worked at least five days per week. In 2004, his wages varied, but averaged $1,250 gross each week. He was employed as a full-time casual.
•
Boning is physically demanding work. At the end of a shift he would experience aches and stiffness in his arms, shoulders, neck and back. He does not recall having many days off because of injuries. In December 2004, he was fit and healthy, performing his work without restriction, and consistently exceeding his minimum tally.
•
On or about 14 December 2004, he arrived at Basting Street, Northcote, at his usual time of 6.00 am so that he could check his equipment before his shift commenced at 6.30 am. His bench and platform were clear of waste. Shortly after 6.00 am, he stepped onto the platform to place his equipment on the bench and the platform collapsed forward and to his left. He fell backwards and struck the back corner of the platform with his back and his head struck the floor behind the platform. He tried to break the fall with his right hand. He fell awkwardly and heavily. He lost consciousness for a short time. He was aware of pain in his lower back, the back of his neck and in his right hand, especially his middle finger. The labourer who was supposed to clear and check his area before he started work was apologising and pointed to a missing leg on the front left of the platform. He wanted to stay and finish his shift. The other boners and labourers assisted him, but he continued to experience neck, back and right hand pain. He finished at around midday.
•
The following day he had not improved and so he attended his local medical clinic. He briefly explained what had occurred. He was not examined, but was given a medical certificate for two days off work, prescribed medication, and x-rays of his right hand were taken. His supervisor from work told him to see another doctor. He went to see Dr Waid on 16 December 2004, who has been his treating doctor ever since. Dr Waid examined him, prescribed pain-relieving medication, organised for x-rays of his neck and back, and certified him unfit for work. His back pain became persistent. He was experiencing pain in the left side of his groin and in his left buttock. He continued to take medication and attend physiotherapy. The pain in his hand and neck improved but his back pain did not.
•
In April 2005, he discussed returning to work on restricted duties with Dr Waid. However, his supervisor said there was no light work available and if he could not work as a boner there was no other work.
•
His back pain continued, and in addition to right buttock pain, he was also experiencing numbness in his left leg and pain in his right buttock. His buttock pain was more or less consistent, and the numbness in his left leg was intermittent.
•
He was referred to Mr Barrett, orthopaedic surgeon, on 30 January 2006. Mr Barrett examined him and arranged for an MRI scan, which showed damage to his L4-5 and L5-S1 lumbar discs. He also underwent a discogram to accurately check the damage to the disks. He discussed surgery with Mr Barrett, but at present has decided against it. He was informed that even if he had a good result from surgery, he would not be able to return to work as a boner, or similar jobs, because more than one disc was involved.
•
He continued with physiotherapy until September 2007, when he ceased because he was not getting any long-term benefit. He tried physiotherapy again in late 2008, early 2009, but again experienced limited benefits, and the insurer refused to pay for further physiotherapy. In late 2007, he commenced hydrotherapy to keep himself mobile, attending four times per week. Dr Waid continued to prescribe Voltaren, but because of the long-term side effects, he only takes it when his pain is severe.
•
In late 2006, he was referred to Mr Dhar, an occupational therapist, who he originally saw once per week, but now attends monthly. Mr Dhar administers acupuncture which provides him with temporary relief, and provides instruction in techniques to better deal with day-to-day tasks, and exercises he can do at home. He continues to see Dr Waid monthly.
•
He has not been offered any retraining or occupational rehabilitation. In 2005, at the request of the insurer, he attended a consultancy firm known as Konekt on two occasions. They told him to look for work through Centrelink and other job agencies, and advised that he not volunteer that he had a back injury or that he was receiving workers’ compensation. He has worked as a meat boner all his adult life. He does not have experience or training in any of the alternative employment that Konekt suggested in their report, and does not feel he would be physically capable of performing the alternative work recommended on a regular basis. Further, the alternative positions suggested earnings of around half of what he was earning as a meat boner.
•
Since the injury, he finds sitting for lengthy periods uncomfortable, preferring instead to stand so he can move around; his sleep is disturbed by pain and he finds it difficult to get comfortable in bed; he can walk for around thirty minutes without experiencing increased pain; he can drive a manual car, but experiences increased back stiffness after around forty- five minutes; and he is restricted in his ability to play with his three grandchildren. His condition is unpredictable, with some days being better than others. If he places too much strain on his back he normally experiences increased pain.
•
In 1988, he purchased a 40-acre parcel of land near Kilmore, which he would keep sheep on. In 1992, he purchased another parcel of land with a family friend near Lara, his share being around 56 acres. He also kept sheep on this land from time to time. Before his injury, he was able to work on these properties, mending fences, slaughtering sheep for personal consumption and keeping a vegetable garden. Since his injury, he is very restricted. He still visits these properties from time to time but is now reliant on his son, Robert, to help maintain them.
•
He is now frustrated with his restrictions. He worked throughout his adult life and now feels mentally depressed by his inability to return to work, but does not want to take medication to treat these feelings. If he had not suffered these injuries, particularly to his lower back, he would have continued to work indefinitely beyond sixty-five years. As a result of the injury to his lower back, he cannot return to work as a boner, or any other work he might have been suited for.
16 In his second affidavit, sworn 3 February 2011, the plaintiff deposes that:
•
His pain restrictions and problems caused by his back injury outlined in his first affidavit have continued and can be fairly described as essentially the same except for the following two developments. Since swearing his first affidavit, his pain levels have worsened, as have the physical consequences caused by those pain levels, and he has developed pain which goes down from his lower back into the back of his legs, which can occur if he stands for too long a period.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff, at the time of the injury, had 40 acres of land at Tooborac (near Kilmore) and an equal half share in 112 acres at Lara. He ran sheep on both properties. Since the injury, he has difficulty travelling to Tooborac and no longer keeps sheep on the property. He has tried to sell the property, without success. He only has sheep on the Lara property. He said his son and neighbour do the heavy work. He was asked whether he carried any fence posts. He said his son carried them; he may have rolled them over.
18 The plaintiff conceded he went shopping and may have gone to three shopping centres in one day as he was looking for a present for a baby.
19 The plaintiff said he went to the soccer with his son or friends, but not every week. He said he did not stand for the whole game. He said his son drives his car, or he might go in his friend’s car.
20 Prior to the injury, he coached soccer, which he can no longer do as a result of his injuries.
21 The plaintiff said he had trouble getting into the car. He grabs hold of the handle and lowers himself into the car. This was confirmed on the video.
22 The plaintiff said that his son generally carries the shopping inside. If he feels better he tries to carry the shopping in. The video showed him carrying bags inside. He said one had milk and cheese and others had bread and chips. He said his son carried the beer inside. The video did not show this.
Investigations
23 On 1 February 2006, an MRI scan of the lumbar spine showed:
“… moderate desiccation of the L4-5 and L5-S1 discs with mild posterior disc bulges present at both levels. The bulge at L4-5 contains a fairly extensive area of T2 hyperintensity consistent with annular disruption. No abnormal T2 hyperintensity is seen within the L5-S1 disc bulge. The other lumbar discs are normal in contour and signal intensity. Minor facet joint arthropathy is present at the L4-5 level. The central canal and neural foramina are capacious at all levels. A mild disc bulge is noted at the TL-12 level.
Conclusion
A transitional vertebral body has been designated S1. There are disc bulges at L4-5 and L5-S1 with evidence of internal disc disruption at L4- 5. No nerve root compression is seen.”
24 On 7 June 2006, a lumbar discogram showed:
“L4-5 disc:
The disc is mildly narrowed. The intra-discal pressure is reduced and there is a full thickness posterior annular tear. The contrast injection did induce some pain which was similar to the patient’s normal pain but not as severe. Correlation is rated at around 5 out of 10.
L5-S1 disc:
The disc height is preserved. The intra-discal pressure is mildly reduced. There is a full thickness posterior annular tear with some extension to the left. There is again a mild degree of pain induced by the injection which is similar but not as severe as the normal pain. Again pain correlation is rated at around 5 out of 10.”
The Plaintiff’s Medical Evidence
25 Soon after the work injury, the plaintiff consulted a general practitioner, Dr Saville Waid of Newport, who has treated the plaintiff on a regular basis since 20 December 2004. He provided four reports, the most recent being of 25 January 2011. At the time of the injury, Dr Waid noted that the plaintiff experienced back pain, headaches and a sore hand. On examination, he diagnosed a soft-tissue injury and referred him for physical therapies. The severity of his back pain was moderate to severe with restrictions of all movements to the lower spine and cervical spine. He was unfit for return to work, physiotherapy was commenced and, in April 2005, he was allowed to return to modified work duties. Restrictions imposed included restrictions on lifting weights of more than 10 kilograms and no bending duties. There were no modified duties available with his employer and in August 2005, the plaintiff was referred for a functional capacity assessment with Mr Surinder Dhar, an occupational therapist. The plaintiff was also referred to Mr Barrett, orthopaedic surgeon, for opinion and treatment.
26 In a report dated March 2001, Dr Waid said that the plaintiff’s incapacity appeared to be permanent, he was unfit to return to work and unlikely to be fit for any heavy manual work in the future. He said given his age, educational level and previous work experience, he was unlikely to obtain regular full-time or part-time work. He said if the plaintiff’s incapacity diminishes, he will require vocational training to assist in his return to work.
27 In January 2011, Dr Waid said that the plaintiff was unfit for return to pre-injury or any other duties. He said the plaintiff had limited education and was unlikely to be either physically or intellectually capable of re-training with a view to alternate occupation. It was his view that the plaintiff’s incapacity was entirely as a result of the injury he described. He considered that the plaintiff was suffering a permanent loss of function. He also noted that he had significant restrictions on his ability to perform the activities of daily living and suffered loss of enjoyment and quality of life.
28 In evidence, Dr Waid described the plaintiff as an honest, middle-aged man who had a nasty back injury which had been slow to heal over the years. Dr Waid said the intensity of the pain suffered by the plaintiff will vary. He agreed that the plaintiff’s chances of re-employment were negligible and that he is suffering genuine physical pain.
29 In cross-examination, Dr Waid said he had prescribed Panadeine and Voltaren for the low-back pain, but his preferred analgesics for people with low-back pain was Panadol or Panamax which did not require a prescription. In re-examination, Dr Waid said he did not prescribe anti-inflammatory drugs on a regular basis because of side-effects. He said there is no mention of annular disc tear in his notes because there was not a code for that data entry. He agreed that he saw the plaintiff monthly and that the plaintiff has other medical issues. He agreed he had no knowledge of the plaintiff’s farming activities and his wife’s medical condition. Further, he said he referred the plaintiff to Mr Barrett in February 2006 because the plaintiff’s pain was worsening. In re-examination, he agreed that after the MRI and discogram results were received, he considered the plaintiff was unfit for work. He said that he thought the plaintiff drank because he was frustrated with the chronic back injury, his inability to work, and that people often used alcohol for pain relief. He also said the plaintiff received occupational therapy, was attending a gymnasium and having hydrotherapy to improve his back pain. I consider Dr Waid was a credible witness whose evidence was consistent with the evidence of Mr Barrett and Mr Shannon.
30 In February 2006, Mr Brian Barrett, orthopaedic surgeon, saw the plaintiff at the request of his general practitioner. It was his opinion that the plaintiff had sustained ruptures involving the L4-5 and L5-S1 lumbar discs when he fell backwards, landing heavily on a concrete floor, striking his head and buttock at the time. He considered he suffered some relatively mild aggravation of some arthritic changes in his lower cervical spine and some temporary swelling, bruising and soft-tissue injury to his right, index and middle fingers. He noted that the lower lumbar disc injury had produced considerable low- back pain radiating into the left buttock area and occasional pain into the left groin and left medial thigh which continued to significantly restrict his physical activities and which had not improved following conservative treatment. He considered his incapacity for employment was a result of the heavy fall in the course of his employment in December 2004.
31 In January 2006, Mr Barrett considered the plaintiff had no capacity either to return to his pre-injury work or any lighter and part-time work. He noted that the plaintiff’s symptoms were significantly increased by even light work about his house. He noted that lumbar disc injuries of the type the plaintiff suffered had no particular power of healing or repair and he said it was likely his work incapacity is of a permanent nature.
32 Mr Barrett reviewed the plaintiff on a number of occasions but most recently on 18 January 2011. He said that the plaintiff’s ongoing low-back pain and mainly left sciatica have continued unabated and the plaintiff continues to experience marked and disabling symptoms of low-back pain and pain into both lower limbs, particularly down the left limb. He said the symptoms were consistent with the nature and level of his lumbar disc ruptures. He said the plaintiff’s condition had not improved and he remained significantly disabled by his ongoing symptoms.
33 Examination of the lumbar spine showed that the plaintiff stands in a slightly forward flexion and his lumbar movements were limited.
34 Mr Barrett said all the lumbar movements produced sudden stabs of low-back pain at the limits. He noted moderate lower lumbar tenderness was present, particularly towards the left buttock region, and straight leg-raising tests were 60 degrees on the right but only 45 degrees on the left. Neurological examination of the lower limbs revealed normal power. All lower limb reflexes remained present, but his left ankle jerk reflex is moderately depressed.
35 The plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, on 1 February 2011 at the request of the defendants’ solicitors. It was his view that the disc degeneration had been aggravated by the injury the plaintiff suffered at work and that he has sustained permanent aggravation and possibly acceleration of a degenerative change in the lumbar spine. He considered the plaintiff presented with a moderate disability in the form of significant restriction of movement and some spasm on lateral flexion. He noted that the plaintiff has a very limited command of English, that he has limited skills or qualification. He referred to a Vocational Assessment which suggested employment options, including process work and hand packing. It was Mr Shannon’s view that, theoretically, the plaintiff may be able to perform these options provided that he had a sympathetic employer who permitted him to vary his posture, and provided that he did not have to do much bending and lifting. He was of the view the plaintiff was permanently unfit for work as a boner. Given his age, limited English skills, his prolonged absence from the workforce and his limited qualifications, he thought the chances of him seeking or obtaining employment in the future are extremely limited. It was his view that the plaintiff was not suffering a significant functional overlay. He thought his current level of impairment would continue into the foreseeable future.
Vocational Assessment by Flexi Personnel
36 In January 2011, Ms Louise Meliak of Flexi Personnel said that the plaintiff’s pain and restrictions have had a negative effect on his work capacity, productivity and employability. She said he had major disadvantages, namely limited work capacity, coupled with his age and limited English skills. She said work of the lightest kind requires punctuality, regular attendance and a consistent capacity to do the work which the plaintiff cannot guarantee he can provide. She said if he were to seek alternative employment, he would not be favoured by employers, because his experience is confined to meat boning work, he has limited work capacity due to his injuries and restrictions and is therefore likely to be less productive, and the fear of aggravation of his physical injury, resulting in high absenteeism and likely lost production. She said other negative factors affecting the plaintiff’s retraining or ability to find alternative employment are:
•
The fact he would have to compete with other experienced and able bodied applicants.
• His lack of clerical administration and computer skills or experience. •
His pain restrictions and moderate English skills negatively affect his ability to be retrained.
• His mature age of sixty. •
His pain and restrictions affecting his capacity to perform even light bench-type work.
• The fact he has been out of the workforce for six years. 37 After considering the plaintiff’s medical reports and the above-mentioned factors, Ms Meliak said the plaintiff had no current work capacity given his current restrictions.
The Defendants’ Medical Evidence
38 Dr Chris Baker, occupational health consultant, managed the plaintiff in May 2007. He considered the plaintiff had a capacity for undertaking suitable employment working at bench height where he was lifting weights up to 7.5 kilograms and undertaking a range of tasks.
39 In a report dated 25 June 2007, Dr Baker suggested the plaintiff had the capacity to undertake food process work and hand packing work within the above restrictions. Similarly, he could work as a service station attendant from a physical perspective provided he was not expected to put stock out and retrieve stock. He said his work should be behind a counter. He also said he could work as a car park attendant where he is walking around a car park inspecting and sitting or standing in a booth receiving money. He thought he could work as a smallgoods maker, again providing this work is undertaken at bench level.
40 Dr Gary Davison, occupational physician, examined the plaintiff in August 2009 on behalf of the defendants’ insurer. It was his view that the plaintiff’s condition was essentially degenerative in origin but that he suffered a symptomatic aggravation as a result of the fall in December 2004. He thought it was reasonable to accept that there was still some ongoing contribution from the plaintiff’s employment and it was unlikely that contribution from employment will ever cease to be one contributing factor. It was his view that the plaintiff would have the capacity for sedentary to light work. He suggested a functional capacity evaluation would need to be performed in order to accurately identify his physical capacity.
41 Dr Philip Mutton, occupational physician, examined the plaintiff in November 2005 at the request of the defendants’ insurer. He considered the plaintiff had a capacity for full-time employment and that his injury stirred up some pre- existing changes in the sacroiliac joint. He said the plaintiff was fit for modified duties; that is, light to moderate work. He said the plaintiff had a capacity to continue boning, working at a bench within a weight limitation of 10 kilograms. Alternatively, he said he could undertake unskilled work such as light to moderate process work, container filling and quality control. He said otherwise the plaintiff has limited transferrable skills. He recommended vocational assessment and job-seeking assistance for the plaintiff. He considered the plaintiff’s condition was materially contributed to by his employment.
42 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in October 2006 and April 2007. It was his view the plaintiff had a work-related injury, that he was not fit for his pre-injury duties and is unlikely to be fit for work as a boner in the meat industry in the future as a degree of back pain and stiffness will persist indefinitely. It was Mr Kudelka’s view that the plaintiff could work in alternative duties, avoiding prolonged standing and sitting, repetitive bending and lifting weights in excess of 5 to 10 kilograms. He said the plaintiff had an adequate but poor command of English and no special qualifications and therefore, at the age of fifty-six, alternate employment in a non-manual occupation may be difficult for him to find and would probably require retraining. Mr Kudelka had read the Vocational Assessment of 2 December 2005 undertaken by Konekt. In that report, five suitable employment options were identified. Mr Kudelka did not consider any of the options suitable unless three of the positions could be undertaken in a partly sedentary fashion and with limited lifting. It was his view that the plaintiff should be given job- seeking assistance but he thought it a poor prognosis because of the degenerative changes noted radiologically in the lower lumbar spine, and the plaintiff’s age of fifty-six.
43 In a further report of 27 April 2007, Mr Kudelka had read the Konekt reports and said that his general impression was that the plaintiff was willing to return to alternate light duties if such could be found. He noted however that the plaintiff had limited language skills and education, and therefore his employment prognosis was poor.
Vocational Assessment by Konekt
44 Konekt conducted an assessment of the plaintiff in December 2005. It identified suitable employment options as follows:
ƒ meat and fish worker; ƒ hand packer; ƒ product assembler; ƒ general process worker; and ƒ product quality controller.
45 The employment options have been considered.
46 In April 2007, Konekt conducted a further assessment on the plaintiff and identified suitable employment options in order of priority:
ƒ food process worker;
ƒ hand packer; ƒ service station attendant;
ƒ car park attendant; and ƒ smallgoods maker. 47 Mr Kudelka had read the Vocational Assessment Report and thought that, provided the employment was light, the jobs would be suitable; however, he does not identify what “light” means. So far as the smallgoods maker is concerned, he noted that the plaintiff had no business experience in this area and thought he may have difficulty with the position.
48 Mr Shannon, in 2011, thought that, theoretically, the plaintiff may be able to perform the options provided he had a sympathetic employer who permitted him to vary his posture and provided he did not have to do much bending and lifting. He did not consider he could work as a service station attendant because of his limited command of English.
Video Surveillance
49 Film was shown of the plaintiff. There was nothing in the film that was inconsistent with the plaintiff’s evidence and with what he had told the Court he could and could not do. The surveillance was of no assistance to the defendants.
Credit of the Plaintiff
50 The plaintiff was consistent in reporting the injury and its causes to the doctors whom he saw. There was no suggestion by any of the doctors who examined the plaintiff that he was anything other than genuine, open and co-operative. The evidence was that he followed the advice of medical practitioners, he had a good work history, he was a long-term employee and was industrious. He was keen to return to work and all vocational assessment reports confirmed that.
51 The plaintiff answered all questions in a direct and forthright manner. He did not elaborate. He was a man of few words. I accepted this was due to the fact that English was his second language and he was in a courtroom environment. On occasions he was asked what he did on a particular day. He delayed in answering the question. I considered this was due to the unfamiliar environment in which he found himself. Generally, he was able to understand the questions put to him, but he regularly answered the questions through an interpreter.
52 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
53 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, his employment with the first defendant. All of the medical witnesses accepted the injury was work- related.
54 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 55 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[9] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[10] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[11]
[9] S.134AB(38)(b) and (c)
[10] S.134AB(38)(e), (f) and (g)
[11] Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
56 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
57 I shall consider the narrative test first. Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
…
(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
58 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
59 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[12] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[12] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
60 The plaintiff has sustained an injury to his lower back. The consequences of that impairment are that he can no longer return to his pre-injury employment, nor can he engage in employment which requires him to perform his pre-injury duties. A number of the doctors have said he can only engage in work with restrictions, and have indicated the restrictions would be permanent. Before the injury, the plaintiff had been in full-time employment with the first defendant since 1974.
61 The plaintiff is aged sixty years. He has lost the ability to be a boner, a job for which he has worked in for many years and a job he enjoyed. Further, the evidence is that the plaintiff can no longer perform manual work, the only work for which he is qualified or has work experience. He has very few transferrable skills. In addition, English is not his first language. This represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self-esteem.
62 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
63 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
64 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 65 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”. 66 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
67 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff 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.
68 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 plaintiff’s earning capacity.
69 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) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[13]
[13] (ibid) at paragraph [70]
70 In terms of timing, the comparison between “without injury earnings” and “after injury earnings” is not necessarily consistent. The “after injury earnings” are calculated as at the date of trial (s.134AB(38)(e)), whilst the “without injury earnings” are calculated by reference to the six-year period specified in s.134AB(38)(f). So if the hearing to determine the question of serious injury takes place more than three years after the date of injury, it would not necessarily be an equivalent or parallel comparison: see Acir v Frosster Pty Ltd.[14]
[14] [2009] VSC 454 at [157]
71 The plaintiff’s current earnings from personal exertion are nil.
72 I am therefore required to determine a “without injury” earnings figure based on a six-year period specified in s.134AB(38)(f).
73 The evidence is that the plaintiff has not returned to work.
74 All doctors expressed the view that the plaintiff could not return to his pre- injury employment.
75 Counsel for the defendants submitted that the plaintiff was able to perform suitable work. He submitted that the plaintiff’s level of activity was consistent with him undertaking suitable work. He submitted that the plaintiff’s general practitioner relied on the fact that the plaintiff was the carer for his wife, attended soccer regularly, visited the farm at Lara regularly, then went to Geelong to cattle sales, and was seen at shopping centres. He relied on the reports of Dr Baker, Dr Davison and Dr Mutton. Dr Mutton examined the plaintiff before the MRI scan and discogram had been performed. Those tests confirmed lumbar disc ruptures. Further, Mr Kudelka, orthopaedic surgeon, read the Vocational Assessment of Konekt obtained by the defendants. He said the employment options identified were not suitable unless some of the options could be performed in a partly sedentary fashion and with limited lifting. He considered the plaintiff had a poor prognosis because of the degenerative changes in his lower lumbar spine, and the plaintiff’s age of fifty- six.
76 However, all of the most up-to-date medical reports express the view that he could not return to restricted duties. Dr Waid, his general practitioner, and Mr Brian Barrett, orthopaedic surgeon, said the plaintiff was entirely unfit for a return to pre-injury or any other duties. It was noted that the plaintiff is now sixty years of age, has limited education and is unlikely to be either physically or intellectually capable of retraining with a view to alternate employment. English is not his first language. These views were shared by Mr Michael Shannon, who saw the plaintiff at the request of the defendants’ insurer. Furthermore, Flexi Personnel Pty Ltd, in January 2011, accepted that the plaintiff had no current work capacity given his current restrictions resulting from the injuries he sustained at work in December 2004 and due to his age, lack of transferrable skills and limited English skills, affect his ability to be retrained into more alternative/sedentary work. Accordingly, I find that the plaintiff satisfies the arithmetical formula established by the Act.
77 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of s.134AB(38) the Act. None of the medical reports suggested that further rehabilitation would assist the plaintiff.
78 As to retraining, that has been considered by a number of the medical practitioners and Vocational Assessment Reports. All conclude that due to the plaintiff’s moderate English skills, retraining would not assist him.
79 Accordingly, I do not consider that retraining and rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more.
80 I am satisfied the requirements of s.134AB(38)(g) of the Act have been met.
81 I accept that the consequences of the injury are permanent within the relevant section; that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
82 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
83 Accordingly, I am satisfied that the plaintiff has established that he has the requirements of paragraph (f).
84 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
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