Piatkov v VWA
[2016] VCC 1665
•25 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01228
| ANDREW JAMES PIATKOV | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 November 2016 | |
DATE OF JUDGMENT: | 25 November 2016 | |
CASE MAY BE CITED AS: | Piatkov v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1665 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back- pain and suffering – loss of earning capacity – suitable employment – heavy manual work
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232; Paul Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Ms R Annesley QC with Ms F Crock | Wisewould Mahony |
HER HONOUR:
Preliminary
1 The plaintiff commenced employment with Aldi, as an assistant sales manager, in approximately 2007, and worked in various stores throughout Western Victoria. The plaintiff claims he suffered an injury to his lower back injury during the course of his employment, and in particular, in two incidents in late 2010, one involving him moving fridges and the other involving him unpacking produce.
2 This an application for leave to bring proceedings pursuant to s134(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) of the Act and the plaintiff seeks leave to claim damages for pain and suffering and loss of earning capacity. The body function said to be lost or impaired is the functioning of the plaintiff’s spine.
3 Mr J Brett QC appeared with Mr D O’Brien for the plaintiff and Ms R Annesley QC, appeared with Ms F Crock for the defendant.
4 The defendant defended the case on the basis that the plaintiff had only suffered a muscular or soft tissue injury to his lower back, and that any consequences suffered by the plaintiff were relatively modest.
5 Only the plaintiff was called to give evidence and he was cross-examined. Medical reports and other material were also tendered. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
Relevant background
6 The plaintiff is 39 years of age. He lives with his de facto partner and their two children, aged four and seven years.
7 The plaintiff attended school until Year 11, and thereafter commenced employment in the retail sector, working predominantly for supermarkets. The plaintiff worked for Woolworths and IGA in various roles, including as a trainee manager, and subsequently as an assistant manager. Whilst employed with Woolworths, he also undertook a Certificate III in Retail Management.
8 The plaintiff commenced employment with the defendant in approximately 2007.
9 On 22 June 2009, the plaintiff injured himself at work. The incident report indicated that he had “pulled back out lifting produce crates”, however, the plaintiff denied having injured his lower back in this incident. His recollection was that, at that time, he had hurt his shoulder and had pain in his chest and thoracic spine. He attended a doctor in Horsham and was prescribed Endone and Valium. Upon then driving home to Stawell, the plaintiff stopped at a chemist to get his prescription, and recalled his pain being so bad, that an ambulance was called to assist him.[1]
[1]Transcript (“T”) 28, Line (“L) 10-16
10 The following day, the plaintiff attended his local medical centre, the Patrick Street Family Practice, and consulted Dr Adnan Rasheed. Her note indicated that the plaintiff was suffering pain in his lower left chest after lifting at work, and she prescribed him Endone and Panadeine Forte.[2] On examination of the plaintiff’s mid-thoracic spine, severe tenderness was noted.
[2]Exhibit A, Patrick Street Family Practice Medical Records
11 On 26 June 2009, Dr Rasheed noted that the plaintiff’s pain was well controlled, and that he was fit to go back to work. He was advised to take Panadol.[3]
[3]Exhibit A
12 On 24 August 2009, the plaintiff again attended the Patrick Street Practice, and consulted Dr Andrew Cunningham, who noted that the plaintiff had suffered back pain in the low thoracic region two months previously.
13 The plaintiff accepted that, at that time, the medical records did not refer to a shoulder injury, but he persistently maintained that the pain he suffered at that time was in the shoulder region. I consider the plaintiff’s evidence to be consistent with the medical record referring to thoracic pain, which, could understandably cause referred pain into the shoulder blade region. I also note that the incident report was quite general, in that it simply stated the plaintiff was injured pulling his back at work, and I do not consider it to be inconsistent with the plaintiff’s evidence or the contemporaneous medical records. I do not consider that the incident of 22 June 2009 involved the plaintiff’s lower back, and, beyond a short period of intense pain, do not consider it to have caused the plaintiff any further difficulties or need for treatment.
14 The plaintiff said that he had suffered from depression over the years, for which he had been prescribed medication at numerous times; including the period from October 2009 until at least the middle of 2010.[4]
[4]Exhibit A
15 Prior to suffering his lower back injury, the plaintiff said that he was in good physical health, and that he enjoyed jogging, kayaking and motorcycle riding.[5]
[5]Plaintiff’s Court Book (“PCB”) 5
Injury and its consequences
16 The plaintiff commenced employment with the defendant in approximately 2007. He initially worked at the Bendigo store, before moving to Horsham, then to Ararat, then back to Horsham. The plaintiff suffered his lower back injury whilst employed at the Horsham store as an assistant store manager, which usually involved only two people working in the store. The plaintiff said his role involved moving pallets and handling stock, together with cash register work. The plaintiff was referred to additional responsibilities detailed in his job description title, but acknowledged that while he did some of these tasks, his role was predominantly to assist the store manager to perform his duties.[6] As an assistant manager, the plaintiff said that it was made clear to him in the interview, that the job role was 10 per cent office and 90 per cent shop floor.[7]
[6]T 24, L 18-31 and T 25, L1-3
[7]T 25, L 26-31
17 The plaintiff claimed that he suffered his lower back injury during the course of his employment and, in particular, on two distinct occasions; that being whilst moving fridges, and subsequently whilst unpacking produce. The plaintiff was uncertain as to the exact dates these two incidents occurred, but described them in the following detail:
(i) The fridge incident
18 The plaintiff believed that he first injured his back whilst transferring some fridges from the large pallets on which they had been delivered, to smaller pallets for the shop floor. The plaintiff estimated that he had to move approximately four fridges, and that whilst doing so, he experienced pain in his lower back.[8]
[8]PCB 3
19 The plaintiff believed that, after suffering lower back pain at this time, he attended a doctor at the Tristar Medical Clinic, which was opposite the Horsham store. The plaintiff did not believe that he had time off work, and continued on, working normal hours and normal duties.
20 In his affidavit sworn 11 November 2005, the plaintiff estimated that this incident had occurred in September 2010.[9] However, in cross-examination, the plaintiff was shown a statement which he had provided to an investigator in July 2011 (“investigator’s statement”), in which he stated the fridge incident to have occurred on 12 December 2010.[10] The plaintiff accepted that, given this statement was taken approximately six months after the incident was said to have occurred, it was more likely to be accurate than the date in the affidavit he swore almost five years later.[11]
[9]PCB 2
[10]Defendant’s Court Book (“DCB”) 47
[11]T 57, L 25-31 and T 58, L 1-8
21 The plaintiff was also cross-examined as to the content of the investigator’s statement which, after referring to the fridge incident, stated that the plaintiff’s pain was not constant and that he “seemed to have recovered okay from this injury”.[12] The plaintiff acknowledged that he had been able to continue working, but his memory was that he has always had lower back pain since the fridge incident and that it had worsened over time.[13]
[12]DCB 47
[13]T 60, L14-21 and T 69, L 11, 14-15
(ii) Unpacking produce
22 The plaintiff claimed that he suffered increased back pain following a further incident, in which he was unpacking the store’s produce. The plaintiff said he was required to unload stock stacked on pallets and place it onto shelves,[14] and that whilst moving crates of stock, his back gave way and he fell to the floor.[15]
[14]PCB 3
[15]PCB 3
23 In his affidavit, the plaintiff stated that this incident occurred in December 2010, and that it was witnessed by fellow employee, Sharon. He said that, following the incident, he had to sit on the floor for half an hour, after which time he went back to the Tristar Medical Clinic for medical treatment.
24 An incident report completed by the plaintiff on 2 January 2011, indicated that this incident had occurred on 29 December 2010, whilst the plaintiff was lifting produce crates. The nature of his injury was described as “lower back-pinching”,[16] and the witness was said to be Justin Albourne.
[16]Exhibit 6 – Incident report dated 2 January 2011
25 The plaintiff accepted that this incident report is likely to be the date on which this second incident occurred, and acknowledged that in the investigator’s statement, he erroneously referred to this incident as occurring on 7 February 2011. The plaintiff explained “…the dates may be different on a few things but they are the same incidents.”[17]
[17]T 62, L 14-19
26 The plaintiff recalled that he was prescribed painkilling medication, and that he had a few days off work. At that time, he also completed a WorkCover claim, which was accepted.[18]
[18]PCB 3
27 The plaintiff said that, although he had originally attended the Tristar Medical Clinic in relation to his back pain, he subsequently attended his usual medical practice, the Patrick Street Family Practice. His first attendance in relation to this injury was on 7 February 2011, at which time he was seen by general practitioner, Dr Deepak Sharma. She recorded that the plaintiff had been suffering lower back ache, radiating towards the right lower limb, and noted that he had first experienced this pain a couple of months ago, whilst moving heavy objects. While there is no express mention of this injury being sustained at his work place, the history given by the plaintiff is consistent with the two work incidents he had previously described.
28 On 7 February 2011, a CT scan was taken of the plaintiff’s lumbar spine and no abnormality was detected.[19] The report of this scan is remarkably brief.
[19]Exhibit F, CT of plaintiff’s lumbar spine taken on 7 February 2011
29 On 9 February 2011, the plaintiff was again reviewed by Dr Sharma. Her notes referred to the CT scan showing no abnormality, but noted a past history of osteochondritis. The plaintiff said that he could not recall discussing this with Dr Sharma, but agreed that at that time, it was recommended he undergo exercises to strengthen his back muscles. The plaintiff said that he had always tried to do regular exercises since that time.[20]
[20]T 73, L 10-13
30 On 10 February 2011, the plaintiff was examined by general practitioner, Dr Thusitha Welendawe, who wrote a letter to WorkCover and prescribed Tramadol.[21]
[21]Exhibit A
31 The plaintiff believed that after suffering his lower back injury, he was given certificates of capacity stating that he was fit for only modified duties. In his first affidavit sworn 11 November 2015, the plaintiff stated that he had remained on light duties from the time of the second incident, until he finished with Aldi in August 2011. However, the investigator’s statement suggested that he was off work from 14 February until 20 February 2011, and that he thereafter returned to work on light duties. It further stated that the plaintiff initially worked 32 hours per week, increasing to 40 hours per week in March 2011. The plaintiff then transferred to the Ararat store, where he predominantly worked on the register.[22] The investigator’s statement then noted the plaintiff was cleared for normal duties on 28 March 2011, and thereafter worked over 50 hours a week. On 13 June 2011, the plaintiff suffered an increase in back pain and went back to modified duties, so as to avoid lifting and bending, but he was still able to work 50 hours per week.[23]
[22]DCB 48
[23]Exhibit B, Return to Work Plan dated 23 June 2011
32 In August 2011, the plaintiff was terminated from his employment with Aldi, due to an allegation of theft by the plaintiff and a fellow employee. The allegations of theft were not made out, but the plaintiff accepted that his employment was terminated at that time, for reasons unrelated to his back injury.[24]
[24]T 80, L 9-18
33 On 5 September 2011, an MRI scan was taken of the plaintiff’s lumbar spine, which demonstrated mild degenerative change at T12/L1, with no central canal stenosis, focal disc herniation or evidence of neural impingement.[25]
[25]PCB 22
34 On 28 September 2011, the plaintiff obtained employment with Woolworths.[26] He said that he initially commenced on a part-time basis, but was subsequently able to increase to full-time hours. The plaintiff said he struggled to work full-time, such that at one stage, he was absent from work for a period of two months, as he struggled to get his pain medication at the right level.[27]
[26]Exhibit D, Return to work co-ordinator case notes dated 9 October 2012
[27]T 80, L 26-31 and T 81, L 1-5
35 In October 2011, a record of general practitioner, Dr Elspeth Horn, noted that the plaintiff was working 30 hours a week in his new job, with limited heavy lifting. She considered it reasonable to limit his work to eight hours a day, as well as to limit his lifting.[28]
[28]Exhibit A
36 On 9 October 2012, the plaintiff discussed his situation with the Return to Work Coordinator at Woolworths.[29] Her note indicated that the plaintiff was “barely”[30] managing his duties at Woolworths, and that his aim was to proceed in a claim against the defendant, so as to receive a lump sum benefit, and to then work 20 hours per week with Woolworths. It was acknowledged that his supervisors at Woolworths had been helpful in accommodating his restrictions when asked.
[29]Exhibit D
[30]Exhibit D
37 In approximately November 2012, the plaintiff applied for and was subsequently granted an income protection benefit, in which he received top-up pay based upon his ability to work a maximum of 20 hours per week. Dr Abulwahab Hanafi, from the Patrick Street Family Practice certified that the plaintiff was capable of light duties, such as computer use, signing paperwork and light retail duties.[31]
[31]Exhibit 4
38 On 21 August 2013, the plaintiff discussed his work arrangements with management at Woolworths. An email prepared by Darren Grootveld from Woolworths, noted that the plaintiff had a 38 hour contract, but was only able to work 20 hours per week due to a lower back injury from his previous employer.[32] It was noted that the plaintiff was unwilling to accept a new contract of employment for reduced hours, as he understood a term of his insurance payment was that his contract of employment was for a full-time position.
[32]Exhibit C, Email from Darne Grootveld dated 21 August 2013
39 The plaintiff was cross-examined as to his refusal to work 38 hours per week. It was put to him that his preference was to work only 20 hours, whilst receiving top-up pay from his income protection insurer. The plaintiff denied that acceptance of his income protection claim was a motive for him reducing his working hours,[33] and said that it was his ongoing back pain which prevented him working more than 20 hours per week.[34]
[33]T 85, L 14-26
[34]PCB 9
40 The plaintiff said that when he was working, he could lift and walk at the beginning of the day, but that as the day went on, his ability to move became limited, he would experience pain and he felt as if his “body was giving up.”[35]
[35]PCB 7
41 In June 2014, the plaintiff became involved in an altercation with a fellow worker. He said that the incident had occurred early in the morning, and blamed his bad temper on the medication he was taking. The plaintiff denied that he physically assaulted his work colleague, but accepted that as a consequence of the altercation, he was effectively forced to resign his employment.[36] The plaintiff has not worked since that time.
[36]T 86, L 26-31 and T 87, L 1-10
42 Since suffering his lower back injury, the plaintiff has continued to regularly attend doctors at the Patrick Street Family Practice. Throughout that period, he was prescribed numerous medication including Tramadol, Mobic, Naprosan and Panadeine Forte.
43 The plaintiff was referred to pain specialist, Dr Bruce Mitchell, in February 2013. Dr Mitchell noted that at that time, the plaintiff was suffering bilateral low back pain, which he described as a constant burning and sharp, pinching pain which fluctuated in severity from four to eight out of ten. Dr Mitchell noted the back pain was aggravated by bending and sitting, or standing more than 60 minutes.[37]
[37]PCB 12
44 Dr Mitchell arranged for a further MRI scan to be taken of the plaintiff’s lumbar spine, which he considered to indicate some desiccation of the bottom two discs and some moderate stenosis at L4/5 with loss of sedimentation sign. Dr Mitchell recommended a medial branch block of his lumbar facet.[38] At that time, Dr Mitchell also recommended that the plaintiff try Endep. The injection was performed on approximately 25 July 2013, but gave the plaintiff no relief.[39]
[38]PCB 14
[39]Exhibit A and PCB 4
45 On 2 July 2015, a CT scan was taken of the plaintiff’s sacro iliac joints. It demonstrated no abnormality and the lower lumbar disc margins were noted as normal.[40]
[40]Exhibit 7, CT scan of plaintiff’s thoracic joint dated 2 July 2015
46 The plaintiff underwent a pain management course approximately two months ago. He said that following that course, he was able to reduce his Tramadol intake from four to two tablets per day. As a result, the plaintiff said that things are now clearer in his head, and that he is less muddled than before.[41]
[41]T 95, L10-11 and T 19, L 25-31 and T 20, L 1
47 The plaintiff attempts cross-training, approximately three times per day, in 15 minutes sessions. He does this to keep up his fitness levels.[42]
[42]PCB 4
48 The plaintiff said that he has a constant ache in his lumbar spine, which is made worse by bending and twisting.[43] The plaintiff said that his pain levels fluctuate,[44] and that often when he wakes, it takes him a long time to start moving because of his back pain. [45]
[43]PCB 4
[44]PCB 9
[45]PCB 9
49 The plaintiff said his back pain interferes with his sleep, and that often makes him tired and irritable the following day.[46]
[46]PCB 7
50 The plaintiff said that he is able to do some household tasks, but that he has had to make adjustments. For example, the plaintiff said that he purchased a new self-propelling lawnmower, to make the task of mowing the lawns easier for him. He is also able to use a whipper snipper for short periods, as it is relatively light and easy to use.[47]
[47]PCB 5
51 As a consequence of his back injury, the plaintiff no longer goes kayaking, and has sold the motorcycle he previously enjoyed riding.[48]
[48]PCB 5
52 The plaintiff said that he is not as active with his children as he would like to be. For example, he said they have a trampoline at home and he is not able to bounce on it with them.[49]
[49]PCB 5
53 The plaintiff takes Tramadol twice a day, which causes him to feel drowsy, restricts him in driving and has impacted upon his personality and mood. [50]
[50]PCB 8-9
Plaintiff’s medical material
54 The plaintiff relied upon medical reports provided by his treating practitioners at the Patrick Street Family Practice. In a report to the plaintiff’s solicitors dated 6 May 2016, Dr Arthur Obi stated that the plaintiff suffered a chronic low back ache, which he considered to be discogenic pain. It was noted that the plaintiff had been referred to the Ballarat Pain Clinic for chronic pain management issues. Dr Obi considered that the plaintiff would be able to work with restrictions, including that he not lift over five kilograms, that he avoid bending and sitting for over two hours, as well as requiring frequent rest breaks for stretching exercises. Dr Obi considered such restrictions in his work capacity would be for the long term.[51]
[51]PCB 18
55 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Russell Miller, in August 2016. In his report dated 5 September 2016, Mr Miller diagnosed the plaintiff as suffering a musculoligamentous strain to the spine, an aggravation of degenerative disease in the lumbar spine. He related this condition to the two work incidents described by the plaintiff.[52] Mr Miller considered that the plaintiff will have ongoing work restrictions, such that he would need to avoid work involving repetitive bending, repetitive lifting, lifting of weights more than five kilograms and a requirement that he shift his posture on a regular basis. Mr Miller considered the plaintiff was unfit for his pre-injury duties on any significant full-time or part-time basis.[53]
[52]PCB 27
[53]PCB 28
56 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Helen Sutcliffe, in July 2016. In her report dated 26 September 2016, Dr Sutcliffe noted a full range of movement in the plaintiff’s lumbosacral spine, but after reviewing the medical material and radiology, she considered that the plaintiff had sustained discogenic pain with some neuropathic component with involvement of the plaintiff’s left lower limb. She was of the opinion that the plaintiff had no capacity for his pre-injury employment, and instead had a capacity for part-time employment provided no manual handling was required.[54]
[54]PCB 39
Defendant’s medical material
57The defendant arranged for the plaintiff to be examined by physician, Dr Clive Kenna, in July 2011. In his report dated 18 July 2011, Dr Kenna noted that, at that time, the plaintiff was working 30 hours a week on modified duties. Dr Kenna noted the plaintiff was suffering muscle spasm, and contemplated a diagnosis of non-specific soft-tissue injury. However, he stated that he was unable to make a diagnosis, as he did not have access to the CT scan, and considered an MRI scan would be appropriate.[55]
[55]DCB 4
58The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Troy, in January 2013. In his report dated 20 January 2013, Mr Troy noted that although degenerative changes were evident on the MRI scan of September 2011, he considered there was no clinical evidence that the plaintiff had symptoms or findings relating to such degenerative changes.[56]
[56]DCB 14
59In February 2016, the defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley. In his first report dated 15 February 2016, Mr Dooley diagnosed the plaintiff as having suffered a soft-tissue injury to his lumbar spine, which involved aggravation of underlying degenerative disc disease.[57] He considered the plaintiff’s ongoing symptoms and restrictions consistent with symptomatic degenerative disc disease of the lumbar spine, and considered that the plaintiff was unable to engage in heavy impact activities or leisure pursuits.[58] The defendant submitted that I should disregard the opinion of Mr Dooley, in circumstances where he was not provided with a copy of the CT scan of June 2011.
[57]DCB 20
[58]DCB 21
60In a subsequent report dated 8 September 2016, Mr Dooley confirmed his opinion that the large majority of the plaintiff’s current condition related to his employment with Aldi in 2010, and that only a modest aggravation would have occurred when he was subsequently employed at Woolworths.[59]
[59]DCB 22
61The defendant also arranged for the plaintiff to be examined by occupational physician, Dr Gary Davison in February 2016. In his report dated 25 February 2016, Dr Davison considered the following physical restrictions would be appropriate for the plaintiff in an occupational setting:
·vary posture regularly and at will;
·avoid frequent or sustained bending or twisting;
·avoid manual handling greater than 15 kilograms in force between mid-chest and mid-thigh height;
·graduated hours initially commencing four hours per day, five days per week and increasing by 30 minutes per day, per week, until full-time hours are achieved.[60]
[60]DCB 29
62Dr Davison considered the plaintiff had capacity for employment in the retail sector, as well as having the capacity to undertake data entry work and employment as a console operator.[61] In May 2016, the defendant obtained a report from AMS Consulting Group, as to what may constitute suitable employment, having regard to the medical reports of Mr Dooley and Dr Davison. This report identified the following vocational options for the plaintiff:
(i) console operator;
(ii) retail sales – department store;
(iii) storeperson – light roles;
(iv) sales clerk;
(v) warehouse administrator;
(vi) data entry operator;
(vii) bank worker;
(viii) sales representative.[62]
[61]DCB 29
[62]DCB 37
63An analysis was then done as to what each job involved, the average weekly gross wage associated with such a job and the availability of such jobs within a reasonable distance of the plaintiff’s home in Stawell.
64I note that the AMS Consulting Group were not provided with any reports from the plaintiff’s treating practitioners.
The plaintiff’s credibility
65 The defendant submitted that the plaintiff was an unreliable witness, who at times was non-responsive and untruthful. Ms Annesley referred me to numerous extracts of transcript, which she said demonstrated inconsistencies in his evidence. Such examples included:
(i) the plaintiff’s evidence regarding the June 2009 incident.
The plaintiff maintained that he did not injure his back in this incident, and that he instead suffered chest and shoulder pain. However, he accepted that this was not reflected in either the incident report, which referred to back pain, or the doctor’s records, which did not refer to shoulder pain. In considering all of the evidence relating to the June 2009 incident, I consider it likely the plaintiff suffered thoracic pain, with referred pain into his shoulder, and that his lower back was not injured in this incident. The June 2009 incident therefore has minimal relevance to this application, and I do not consider the plaintiff’s evidence in relation to this incident to be unreliable.
(ii) the plaintiff’s pre-injury state of health.
The plaintiff said he was in good physical health, but acknowledged that he had suffered depression prior to suffering his back injury.[63] In later questioning, he stated his depression had not been a problem before his back injury.[64] Given his depression did not stop him working, I see no inconsistency in this evidence.
[63]T 29, L 23-27
[64]T 30, L 6-9
(iii) the plaintiff’s restrictions at work after suffering his lower back injury.
In his affidavit, the plaintiff stated that he had been on light duties at Aldi since suffering his lower back injury. In the investigator’s statement, however, he said that he had returned to normal duties for a period from 28 March 2011 until mid-June 2011. The plaintiff accepted that the investigator’s statement was probably more accurate as it was recorded closer in time to the incident occurring, than the affidavit. Save for this three month period, the plaintiff was, for the majority of the time after suffering his lower back injury, on light duties and/or reduced hours, and worked predominantly on the cash register. I do not consider that he intended to mislead the court in his affidavit regarding his post injury work restrictions.
(iv) the circumstances and dates associated with the two work incidents.
In his affidavit, the plaintiff conceded that his memory of dates was poor, and referred to the fridge incident as occurring in September 2010. In the investigator’s statement, however, he referred to the incident as occurring on 12 December 2010. There is no incident report for the fridge incident.
The plaintiff said that his back was never the same after the fridge incident. This is not inconsistent with comments in the investigator’s statement that after it, he did not have constant pain, and that he seemed to have recovered ok. I accept the pain and disability following the fridge incident, was not as frequent or intense as the pain he subsequently suffered following the unpacking produce incident.
The plaintiff readily accepted the contents of the incident report dated 29 December 2010. I note that it was a very brief report, which did not refer in detail to what occurred when the plaintiff suffered his injury. However, I accept the plaintiff’s evidence that he can recall falling to the ground, and that he then sought medical treatment at the Tristar clinic across the road.
I note that the plaintiff was mistaken in who witnessed the incident, but I do not consider anything turns on this.
In considering the whole of the evidence, I accept that these two incidents occurred in December 2010, in the way described by the plaintiff. In circumstances where the plaintiff claims his injury was suffered over the course of his employment, nothing turns on the exact dates of the fridge incident or the unpacking produce incident.
(v) the cessation of the plaintiff’s employment with Aldi.
The plaintiff did not seek to attribute his lower back injury to the cessation of his employment, and referred to alleged misconduct by a fellow employee in his affidavit. The plaintiff was not charged with theft, but following an investigation lost his job. I do not consider he gave inconsistent evidence regarding this matter.
(vi) the working hours and duties which he subsequently performed at Woolworths.
I accept that the hours and duties changed over the course of his employment. The contemporaneous notes of Woolworths staff, together with records from the Patrick Street Family Practice, corroborate the plaintiff having physical difficulties in this job, with a need for time off work, and a need for some restriction in his duties and hours. The plaintiff was confused as to the exact dates his working conditions changed, but I make no criticism of him for this, given it was several years ago.
Further, I accept as entirely plausible, the plaintiff’s refusal, following legal advice, to accept a 20 hour a week contract, and make no criticism of him in respect of the matters he discussed with Woolworth’s Return to Work Coordinator and subsequently Darren Grootveld.
(vii) his termination of employment at Woolworths.
The plaintiff was terminated after an altercation with a fellow employee, which he disclosed in his affidavit. Greater detail of this incident was provided by the plaintiff to the Recovre consultant in January 2015, but given the upfront disclosure in his affidavit, I make no criticisms of the plaintiff regarding this.
66 In addition to the above, the defendant relied upon video surveillance taken of the plaintiff on 21 January 2016 and 13 October 2016. Ms Annesley submitted that this video demonstrated the plaintiff had no apparent restrictions in his movement, which was inconsistent with what the plaintiff otherwise claimed.
67 I do not consider the video surveillance to adversely impact upon the plaintiff’s credibility. He had previously deposed to his ability to mow the lawn, after purchasing a self-propelling mower, as well as his ability to use his whipper snipper for short periods due to its light weight. I accept the plaintiff’s evidence that, at the time he was mowing his lawn, he was wearing a back brace and had taken Tramadol medication.
68 The defendant admitted that it had obtained approximately 30 hours of video surveillance of the plaintiff, in January 2016 and October 2016. I note that just less than one hour of video footage was shown to me.
69 Overall, I consider the plaintiff was a creditworthy witness. He openly conceded that his memory of dates was poor, and generally accepted the accuracy of contemporaneous records.
Permanent
70 In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent.
71 It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time.”[65]
[65]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [19]
72 I am satisfied that the plaintiff suffers a permanent aggravation of degenerative changes in his lumbar spine. This diagnosis is supported by orthopaedic surgeons, Mr Dooley and Mr Miller. The Defendant submitted I should not accept the opinion of Mr Dooley as he was not provided the CT scan of June 2011. However, I note he did review the MRI scan of 2013. As these are radiological scans of a higher quality than a CT scan, and given Mr Dooley’s extensive experience in examining patients for medico-legal purposes, I accept his opinion in respect of this diagnosis, and consider it consistent with that of Mr Miller and also Dr Sutcliffe.
73 I am not assisted by the opinion of Mr Troy, in that he referred to the degenerative changes on the MRI scan, but stated that there was no clinical evidence that the plaintiff had symptoms related to it. That is inconsistent with my acceptance of the plaintiff was a creditworthy witness, who has suffered ongoing symptoms in his lower back since December 2010.
74 I accept the plaintiff’s pain has persisted since December 2010. He did not receive any long term benefit from the epidural injection, and no surgery has been recommended. The plaintiff has taken Tramadol since June 2011, and although his dosage was recently reduced, he continues to take it on a daily basis.
Loss of earning capacity
75 Having thus accepted that the plaintiff’s lower back injury is permanent, I must now consider whether the impairment arising from the injury satisfies the requisite loss of earning capacity test.
76 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
77 In determining the plaintiff’s claim for loss of earning capacity, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a)the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[66]
[66]s134AB(38)(f)
78 In the three financial years before suffering his lower back injury in December 2010, the plaintiff earned the following gross annual income:
· Financial year ending 30 June 2008: $65,465
· Financial year ending 30 June 2009: $69,835
· Financial year ending 30 June 2010: $73,804
79 In the subsequent financial year, including those periods in which the plaintiff was either absent from work, or worked reduced hours due to his lower back injury, he earned $74,800.
80 Mr Brett submitted that, prior to suffering his lower back injury, the plaintiff enjoyed an average annual increase in excess of three per cent, and that it was reasonable for the plaintiff to claim a subsequent annual increase of three per cent, if not for his injury. Ms Annesley submitted that, in the year prior to the plaintiff ceasing work, the annual increase was closer to one per cent, than three percent. She therefore submitted that the figure which most fairly reflects the plaintiff’s without injury earning capacity, is the amount he earned in the financial year prior to ceasing his employment with Aldi, that being $74,800.
81 It is not necessary for me to decide between these competing submissions as to which figure mostly fairly reflects the plaintiff’s without injury earning capacity. For reasons I will explain below, the plaintiff satisfies me that he suffers the requisite 40 per cent loss, even on the lower figure of $74,800.
82 If the sum of $74,800 is taken as the plaintiff’s without injury earning capacity, then his average gross weekly earnings would be $1,438.46. Applying the statutory test to that sum, I must be satisfied the plaintiff is now incapable of earning no more than $863.08 per week, and that such a restriction on his earning capacity will be permanent.
83 What constitutes “suitable employment” is an objective test, which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[67] In Barwon Spinners Pty Ltd & Ors v Podolak, the Court of Appeal stated that it involves looking at a physical capacity for work, and it is not concerned with whether employment will or will not be obtained.[68] However, as was acknowledged in Giankos v SPC Ardmona Operations Ltd, the availability of work in a regional area is a matter than can be considered when assessing what constitutes suitable employment for the plaintiff.[69]
[67]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
[68]Ibid at [27]
[69]Paul Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120
84 In the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[70] it was noted that under s134AB claims, the court must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[71]
[70][2016] VSCA 188
[71]Harris, at [49]
85 I accept that the plaintiff suffers ongoing lower back pain, for which he requires Tramadol medication on a daily basis. I accept that he is limited in his sitting and standing tolerances. I accept that his lower back pain interferes with his sleep, and that he is often slow to be able to get and move in the mornings.
86 I note that Dr Obi considered the plaintiff is restricted to lift no more than five kilograms, but Dr Davidson considers his lifting restriction should be 15 kilograms. I consider the plaintiff’s acceptance that he can lift his child who weighs about 15 kilograms,[72] is different to lifting such weights on a frequent basis in a work environment.
[72]T 97, L 1-2
87 Dr Davidson considered that the plaintiff was capable of commencing work, with restricted duties for 20 hours per week, gradually increasing by 30 minutes a week, until full-time hours were achieved. However, I consider this is overly ambitious given the plaintiff’s evidence that he was unable to cope working full-time at Woolworths, and that he even struggled when working 20 hours per week.
88 I note that Mr Miller did not refer to the plaintiff only working 20 hours per week when his employment from Woolworths was terminated. He does not expressly comment on whether the plaintiff was capable of full-time work in sedentary employment.
89 Dr Sutcliffe considered the plaintiff was only capable of working part-time. Dr Jones, Mr Troy and Mr Dooley did not comment on the plaintiff’s work capacity.
90 I attach significant weight to the contemporaneous medical records from the Patrick Street Family Practice, which demonstrated the plaintiff regularly attends doctors at that clinic in respect of his ongoing lower back pain, and need for Tramadol. I also attach weight to the documents from Woolworths, which noted that the plaintiff was barely managing in his work, that he needed help due to his restrictions and that he needed to limit himself to 20 hours per week. Further, given my acceptance of the plaintiff as a creditworthy witness, I also attach weight to his evidence that his back injury prevents him working more than 20 hours per week in light work.
91 The Court of Appeal recently observed in Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 that, an assessment as to whether a plaintiff has established the requisite loss of earning capacity, need not be determined solely by reference to the medical evidence, but instead “on a full and proper consideration of all of the evidence in the application.”[73] As was the situation in Poholke, the plaintiff’s evidence of physical difficulty coping with his modified duties and reduced hours at Woolworths, was an important matter for me to consider in assessing the plaintiff’s capacity for suitable employment. For the reasons stated above, I have ultimately concluded that 20 hours a week, constitutes the maximum the plaintiff is capable of performing in suitable employment.
[73]Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 Paragraph 131
92 I reject Ms Annesley’s proposition that the plaintiff’s work capacity is currently restricted due to his responsibilities as primary carer for his young children. This submission was not put to the plaintiff, and further, appeared inconsistent with the considerable number of hours the plaintiff worked before suffering his lower back injury.
93 In looking at the hourly rates of pay for the different occupations considered to be suitable employment in the AMS report, with a maximum capacity of 20 hours per week, I am satisfied the plaintiff will be incapable of earning more than $863.08 per week.
94Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the ‘very considerable’ test.[74] Given my acceptance that the plaintiff’s lower back injury restricts him to only part-time work, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
[74]s134AB(38)(c)
95 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[75]
[75]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Orders
96 I am satisfied that the plaintiff suffers a serious injury to his lower back, arising as a consequence of his employment with the defendant, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
97 I shall make the consequent orders.
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