Picozzi v Direct Skills Pty Ltd
[2012] VCC 1826
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-00394
| MARK PICOZZI | Plaintiff |
| v | |
| DIRECT SKILLS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 14 and 15 November 2012 | |
DATE OF JUDGMENT: | 26 November 2012 | |
CASE MAY BE CITED AS: | Picozzi v Direct Skills Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1826 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application; prior injury to lumbar spine; now prolapse at L4/5 with compression of L5 nerve roots; whether consequences of aggravation at least very considerable; whether permanent loss of 40% of earning capacity at suitable employment.
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(a), (b), (e), (f) & (g)
Cases Cited:Hunter v Transport Accident Commission [2009] VSCA 1; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paras [58] – [64]; Filipowicz v AG Staff Pty Ltd [2012] VSCA 60; Petkovski v Galletti [1994] 1 VR 436
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr M Belmar | Maurice Blackburn |
| For the Defendant | Mr S Jurica | Lander & Rogers |
HER HONOUR:
1 Mr Mark Picozzi suffered injury when struck by the arm of an excavator at work on 8 February 2007. He seeks leave of the court to bring a claim for damages in respect of that injury, and to obtain leave must satisfy the court that he suffered a “serious injury” within the requirements of s134AB of the Accident Compensation Act 1985.
2 His application is in respect of both pain and suffering and loss of earning capacity.
3 The injury alleged is to the plaintiff’s L4/5 lumbar disc with impingement of the L5 nerve root causing referred pain and neurological deficit in his right leg. The application relies solely[1] on part (a) of the definition of “serious injury”[2], in that the injury is alleged to have caused “serious permanent impairment of the function of” his lumbar spine. That definition requires him to satisfy the court that the ongoing consequences of the injury to him, for the foreseeable future, when compared with the range of other possible impairments of body function, fairly meet the description of “more than significant or marked” and “at least very considerable”.[3]
[1]As originally issued there was an alternative claim under part (c) of the definition, but it was abandoned at the outset of the hearing.
[2]Definition of “serious injury in s134AB(37)
[3]s134AB(38)(b) and (c).
4 In addition, to obtain leave to claim damages in respect of loss of earning capacity for this injury, he must satisfy the court that he has a permanent loss of earning capacity of at least 40 per cent, measured as set out in the statutory formula in s134AB(38)(f)[4], taking into account his capacity for suitable employment after reasonable attempts to participate in rehabilitation or retraining[5].
[4]s134AB(38)(e).
[5]s134AB(38)(g)
5 The defendant does not dispute that during the course of his employment with it on 8 February 2007 there was an incident in which the plaintiff was hit by the arm of an excavator, but does not admit that he suffered injury to his back as a result. Further, it argues that if he did suffer any injury to his back from that incident then:
(a) any such injury was an aggravation of a previous low back condition naturally occurring, or alternatively of an injury caused in a motor vehicle accident in August 2000;
(b) the consequences of any such aggravation to his pre-existing lumbar spine condition suffered as a result of the incident do not fall into the “range” of being permanently very considerable, given his good level of recovery; and
(c) he has not suffered a loss of earning capacity of at least 40 per cent of his without injury prospective earnings.
6 The evidence in the application consisted of the documents set out in the attached schedule, the oral evidence of the plaintiff who was required for cross-examination, and of Mr Peter Xenos, neurosurgeon, who had treated the plaintiff on the referral of his general practitioner in 2007, and whom the defendant required to attend for cross-examination.
7 As in most applications of this nature, the credibility and reliability of the plaintiff’s own evidence is very important, as not only the court but also the doctors’ opinions which are in evidence are all heavily dependent on the plaintiff’s own version of the onset, extent and duration of symptoms, and of their impact on his life.
8 My impression of Mr Picozzi was of a man telling the truth to the best of his recollection, frank and forthright in his answering of questions, reflecting some frustration with the process, but genuine in his complaints of symptoms. His memory was vague about a number of matters, particularly recollection of particular doctors and what he told them, but I did not consider that to be surprising nor deliberately evasive. On the contrary, he made several frank admissions against his interests in the case, and repeatedly volunteered information potentially against his interests when he had not even been asked a direct question requiring such concession.
9 Throughout the application he has revealed a significant prior back injury suffered in NSW in August 2000. I am satisfied that he has been frank with doctors, that some variations in what he recalled were inevitable, and that where certain matters were not reported by doctors it was not a deliberate evasion by Mr Picozzi but rather was likely to be due to either the particular way he interpreted what he was asked, or that the doctor did not report everything mentioned.
10 I did not gain the impression that he was exaggerating his symptoms or his level of disability. On the contrary he presents as a man of stoicism and very determined to maximize his retained capacities. I note consistent with my impression that the defendant’s first medical examiner, Mr Battlay, found no evidence of exaggeration[6], and more recently Dr Stevenson said that the plaintiff’s presentation was “quite unamplified”[7].
[6]Exhibit Q, report of 2/3/09
[7]Exhibit 6 – 20/2/12
11 Mr Picozzi says, and I believe, that his mood becomes difficult to live with, and that he has felt depressed when, such as at the time of the hearing, he has been without employment and become worried about his future and his ability to provide for his family. That does not mean that his psychological condition has complicated or clouded his perceptions of the physical injury to his back, and I note the assessments of Mr Battlay and Dr Stevenson that there are no functional or non-organic aspects to his complaints.
Plaintiff’s background and pre-injury circumstances
12 Mr Picozzi is now aged 48. He was born in South Australia where he left school aged 15 with a pass in Year 10. He commenced an apprenticeship in his father’s plumbing business, but unfortunately his father died soon afterwards and with that disruption, and the need to sell his father’s business, he did not complete his plumbing apprenticeship until he was in his early 20s.
13 He then started his own plumbing business which ran for some 10 years in South Australia. He had a partner in the business who mainly stayed in the office, performing the administration side, and Mr Picozzi was mainly on work sites. The business was successful, with a number of employees including other plumbers. In his 30s the plaintiff sold that business and travelled around Australia, eventually establishing himself in Sydney where he found employment as a plumber on the Olympic stadium project.
14 On 12 August 2000 he suffered extensive injuries on his way to work when his car was hit “head on”. In addition to fractures, and a serious cervical spine injury, he injured his lower back, right foot, and left leg, and also suffered a head injury resulting in some residual brain damage. Although it was the opinion of more than one doctor in the following year or so, including his treating orthopaedic surgeon, that he would not be capable of returning to work as a plumber, he was determined to do so. On a couple of early attempts to return to work as a plumber he found that he could not cope, but he discussed options with his doctors and engaged in extensive physical rehabilitation for a number of years, including physiotherapy, hydrotherapy and strengthening exercises.
15 Following his rehabilitation, he worked as a delivery driver, then returned to restricted plumbing duties. In about 2004 he relocated to Melbourne, where he initially worked as a gym instructor for three to four months, having become interested as part of his rehabilitation, and gained qualifications. Then he says he was strong enough to return to full-time plumbing. Between about 2004, and November 2006, he was employed in commercial plumbing on large commercial projects[8]. At the end of one such project, in November 2006, he registered with the defendant as at that time he knew that work was available on the Eastlink project which was located near where he lived.
[8]T38-41: About 6 to 8 months by Cooke and Carrick on a 30 storey apartment block, 8 or so months at R& F Plumbing on an aged care home, 3 to 4 months by Master Roof & Plumbing Services doing roofing on a Bluescope Steel mill roof, and by Contract Hydraulics on another 30 storey apartment building, from which he was laid off on 26 November 2006.
16 In late November 2006 he was employed by the defendant as a full-time pipe layer/labourer on the Eastlink project. This was at higher remuneration than he had previously received, with allowances for the nature of the project, requiring working beyond usual hours with set deadlines. He brought to it his experience and skills as a plumber, carried out a senior role in his team, of reading plans and marking out the positioning of trenches for the major pipes (requiring protracted bending), using a 20 kilogram crowbar to position very heavy six metre pipes in 30 to 50 metre long trenches, and he also did some of the other heavy work of his team including at times spreading gravel and using a “whacker” to compress rock around the large pipes which had been placed by machines. Overall, the work was heavy and physical and lasted long hours, and he was able to perform it, notwithstanding that he still had some pain in his back and neck symptoms from his previous injuries.
17 I accept his evidence that in the two to three years leading up to February 2007 he suffered some ongoing pain in his lower back, occasional pain in his left leg, and discomfort in his neck which at times caused pain in his right arm and tingling in the right index finger. He self-treated these problems by exercising as he had been advised and taught over the intervening years. At times he attended a chiropractor. I accept his evidence that this was about four times a year for what was called “maintenance” on his whole body.
18 Mr Picozzi had always been a keen participant in sports, and prior to the 2000 injuries he played football, ran, and was a very keen surfer. Following the 2000 injuries, his ability to engage in those activities was significantly impaired for a considerable time, but he resumed some surfing with restrictions[9], trained amateur football teams, and had taken up bicycle riding to maintain fitness, try to lose weight, and to replace some of the sport in which he could no longer participate[10]. He became very keen on mountain bike riding, but also did some road cycling.
[9]He would not be able to go out on a 12 foot day, so had to stick to point breaks – T81, lines 24-30.
[10]T 80
19 As at the time he commenced employment with the defendant, I am satisfied that he surfed, about three to four times a week, at beaches including Gunnamatta and Point Leo, engaged in mountain bike riding often, and some road riding, and was a football trainer with Glen Waverley Panthers involved in pre-season fitness training. Although he could no longer do 10 kilometre runs, he could still do short runs around the oval and in the skills training.
20 As at February 2007, he was living with his then wife in Melbourne where there was also extended family. Although he says little about them, he has three children, and at least the youngest was living with them in February 2007. He says he no longer sees his children. There was a stressful marriage breakup in mid-2007.
Did the 8 February 2007 incident cause any injury to the plaintiff’s back?
21 On 8 February 2007 Mr Picozzi’s team was assigned to work off the Eastlink site, and on an active road. They were required to lay a pipe to another pit and the positioning went under powerlines. He took the role of spotter, to watch that the excavator machine arm did not strike the power lines. Despite at the outset devising a plan that the excavator arm would only be swung in one direction, apparently the operator of the excavator swung it in a different manner direction and he was standing behind the excavator and suddenly saw the boom coming towards his head. He raised his right arm to ward it off and protect his face and head, says he went instinctively to his left to try to avoid it hitting his head, and when it hit his extended and raised right arm its force twisted him, although he does not know whether that was a full 360 degrees[11].
[11]T 50, l 20-27
22 There are some variations in his descriptions of the details of this incident, and the defendant relies on them as undermining his credibility or reliability. It argues that these or his vagueness in memory may have given a different impression of the incident to some doctors so that their opinions on causation should not be accepted. It argues that as a result the court should not be satisfied that he suffered any injury to his back (as opposed to his arm) in the incident.
23 Mr Picozzi concedes that he is not entirely clear in his recollection of this incident, as he was shocked and trying to avoid being hit in the head by the swinging arm of an excavator.
24 At times he has said it also struck the right side of his neck or his torso, but he cannot now specifically recall that contact. He told one doctor that he fell to the ground and one that he fell against a fence, but in the hearing said he now cannot actually remember whether either of those did occur.
25 I accept him as genuinely unable to clearly remember this, and do not consider his credibility undermined by these variations in descriptions of a sudden traumatic incident and its aftermath.
26 He was taken on the day by another worker to the medical clinic used by the employer – The Cove Medical Centre – where he was seen by a Dr Gopathy, who recorded that he had put up his right arm to protect his face and head from a swinging boom of an excavator, and was hit in right hand and arm and on right side of neck. There were no obvious external injuries, no evidence of deformities or fractures, he was tender and was advised analgesics and rest. It appears that an x-ray of his arm was arranged, although he does not himself now recall that.
27 Mr Picozzi says that although he cannot recall what he told the doctor that day, he may well not have mentioned back pain because it was the next morning that he woke up very stiff, and feeling like something had happened - “like I had been hit by a Mach truck basically”[12].
[12]T 53, l 17-18; T 61, l22-24
28 He returned to his usual duties at work the day after the incident, and in the attended his chiropractor, thinking that this was a recurrence of his old back injury. Over the following weeks his pain did not resolve and right leg symptoms developed, of pain and sciatica, and numbness into the sole of his right foot. At first he accepted his chiropractor’s explanation that sometimes symptoms can be felt on the other side of the body, his previous leg symptoms only being on the left, however when the symptoms had not improved over some six weeks he ceased the chiropractic treatment.
29 Easter was in early April, and his back was so bad one morning that his wife took him to the Valley Private Hospital where she worked. He was seen in Emergency by Dr David West, who ordered a CT scan of his spine, and subsequently explained that it showed an injury to lumbar discs which was causing the pain in his right leg, and referred him to a neurosurgeon, Mr Chris Xenos. In early May he was seen by Mr Xenos, and also started seeing Dr Simon Wong as a general practitioner.
30 Mr Picozzi did not return to work after Easter. He says that this was because of his back pain. He denied the defendant’s suggestion that he had in fact been retrenched at Easter time because the job had ended, saying that there were further stages of the Eastlink project on which he could have worked if fit to do so. I note that he was paid a retrenchment package as at Easter, and find it is likely that that stage of the work had finished. I note that in July 2007 Mr Battlay records[13] the plaintiff saying that although the work had been completed at that worksite he had not been “terminated” as further employment was available to him at another site of the freeway and working through a labour hire organisation. I am satisfied that had he not been suffering from acute pain in his low back and right leg he would have sought and probably obtained further similar work.
[13]Exhibit Q, report 17/7/07
31 The CT scan showed at L4/5 a moderate sized right paracentral disc protrusion which indented the right anterior aspect of the thecal sac, and compressed the traversing right L5 nerve root. At the L5/S1 level there was a severe disc space narrowing and osteophytic lipping of the vertebral end plates, but no evidence of nerve root compression.[14]
[14]Exhibit h – CT report 14/4/07
32 Mr Xenos arranged for an MRI of the lumbar spine, which was reported noting a history of trauma and new right-sided sciatica, as showing the L4-5 disc as desiccated and substantially reduced in height, a 10 to 12mm disc extrusion commencing in the midline and descending to the right side 4-5mm below the superior endplate of L5, and it was in contact with the traversing right L5 nerve root and presumably compressing it. At L5-S1 there was marked loss of disc height, diffuse bulging of the disc annulus which was in contact with traversing S1 nerve roots without compressing them.[15]
[15]Exhibit H – MRI report 30/5/07
33 The defendant argues that those radiological findings cannot be attributed to the work incident, because an MRI taken after the motor accident in 2000 showed that there was already degenerative change in the plaintiff’s lumbar spine, including some at L4/5, and based on the opinion of its consultant physician Dr Stevenson[16], degenerative disc disease is a metabolic abnormality of the disc determined by constitutional factors including genetics and the ageing process, and although the lumbar disc can be injured by recreational or occupational forces such injury is rather unusual[17].
[16]Exhibit 6
[17]Exhibit 6, page 4 paragraphs 1 and 2.
34 The defendant also points to the absence of mention of back pain on the day of the incident, to there being only mention of being struck on the hand and arm and possibly neck, to there being some doubt about whether he actually fell to the ground or against a fence, and also to the plaintiff having resumed work the following day, and having continued to work even if some at other duties, full-time, until Easter.
35 I am satisfied that the excavator boom or arm came into contact with the plaintiff’s extended and raised right arm, which was pushed backwards and that the force at least caused his body to twist. I am satisfied that next morning he felt very stiff and his back was painful, that despite continuing to work his back became more painful and right leg symptoms developed, and that the subsequent radiological scans confirm an injury to his L4/5 disc on the compressing the L5 nerve root consistent with the onset of right-sided leg pain sciatica and numbness on the sole of the foot.
36 I am satisfied that he sought treatment for these symptoms from his chiropractor whom he had been seeing for “maintenance”, as he thought it was the old back injury playing up.[18] He did not attend a doctor as he had no regular GP at that time but did have a chiropractor[19].
[18]T 54
[19]T 54, lines 13-16
37 Contrary to Dr Stevenson’s opinion, all other medical opinion in this case accepts the likely causative link between the incident and an injury to the L 4/5 disc with compression of the L5 nerve root. Even though there were some variations in the description of the incident itself, no other doctor mentions the occurrence of disc injury being unusual to be caused by recreational or occupational forces. I accept the majority of medical opinion over Dr Stevenson’s opinion on this issue.
38 Given the description of the hyperextension and twisting of his body on being hit by the excavator arm, description of back symptoms from the next morning, that I believe him that despite continuing to work over the next six or so weeks he was feeling worse pain in his low back and the emergence of pain and numbness in his right leg, I am satisfied that, whether or not he fell to the ground, the mechanics of the incident were such as to be capable of causing discal injury in his lumbar spine consistent with what was shown on radiological scans when taken two months later.
39 His general practitioner from soon afterwards, Dr Simon Wong, wrote that he was uncertain as to the causal connection between the incident with the excavator and his injury, but that if the blow from the machine had caused him “to hyperflexion his spine”, the prolapse could have occurred at that time.[20]
[20]Exhibit B, report dated 28 July 2008 of Dr Simon Wong
40 Mr Xenos diagnosed multi-level lumbar spondylosis with focal new right L4-5 disc prolapse, causing right-sided sciatica with pain and sensory disturbance in the right leg. He was aware of a background of a chronic spinal complaint following the car accident, and considered that the flare up from the work incident had aggravated the situation and thought it correlated well and was consistent with the commencement of lower back and right leg pain. [21] In his oral evidence, Mr Xenos maintained that the plaintiff’s history of the incident and not only flare up of low back pain but also onset of right leg symptoms not previously experienced, combined with the radiology, were consistent with the likely cause being new injury to the L4/5 disc with herniation and compression of the L5 nerve root. While he said that the description “degenerative disc disease” was interchangeable with “lumbar spondylosis” he disagreed that these terms described the cause of the condition.
[21]Exhibit D – report dated18/6/08
41 Mr Peter Battlay, in medico-legal examinations for the defendant in 2007, 2008 and 2009, had a history of Mr Picozzi putting out his right hand to protect himself from the swinging boom of an excavator, and being hit by the boom on the right hand and afterwards being in shock, and not sure whether he fell to the ground or was thrown against a fence, and at the time only being aware of injury to his right arm. After weekly treatments at his chiropractor, because it was assumed he had aggravated his pre-existing back problem, he gradually developed pain in his right leg which he had never experienced before, and further investigations by CT and MRI, and the CT guided epidural injection advised by Mr Xenos. Mr Battlay on examination found radicular symptoms, including absent right ankle jerk. Mr Battlay’s opinion was that the plaintiff had a right sided L4/5 disc prolapse demonstrated at MRI scanning which was a new injury as he previously only had left sided sciatica. He felt it clearly the reason for the plaintiff’s then current condition.[22]
[22]Exhibit Q
42 Associate Professor Richard Bittar, consultant neurosurgeon, in a medico-legal opinion, albeit having a history of the incident including his being thrown backwards into a fence when hit on the right side by the excavator, given the history of symptoms and the radiological reports diagnosed an L4/5 disc prolapse with lower back pain and radiculopathy, to which his employment had been a significant contributing factor, specifically the injury on 8 February being the dominant contributing factor.[23]
[23]Exhibit F
43 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, provided a medico-legal opinion which also accepted the causal connection. He had a description of the plaintiff being struck on the right arm as he tried to avoid the impact, with no reference to being struck elsewhere or falling, and history of no complaint of back pain that day, but next morning not feeling good, seeing a chiropractor but getting worse over some four weeks and developing right sciatica. His opinion was that a disc prolapse at L4/5 on the right would clearly be accepted as causing his right sciatica, and accepted that the injury took place when he was hit on the 8th February 2007 was a sudden stress overload to the L4/5 disc level.[24]
[24]Exhibit G
44 The CT and MRI of his lumbar spine taken in May 2007 showed a distinctly different and more advanced injury to his L4/5 disc with compression. For these reasons I am satisfied that the incident of 8 February 2007 did result in injury to the plaintiff’s L4/5 disc, with resultant referred pain and neurological deficit.
45 Another issue raised by the defendant as to causation of an L4-5 disc injury in the incident was whether the plaintiff is to be believed that he had previously not suffered right leg symptoms. As most doctors relied on his history that he did not, it would undermine their opinions on causation if he had.
46 I am satisfied well beyond the balance of probabilities that the answer to this factual issue is that, prior to 8 November 2007, the plaintiff had not suffered right-sided sciatica, referred pain, numbness in the sole of the right foot nor any other neurological consequence of the condition of his L4/5 disc. My reasons for this finding are:
(i)I believe the plaintiff’s denial of such symptoms because I find him a credible witness.
(ii)Of five medical reports tendered by the defendant in respect of the injuries from the 2000 accident[25], no doctor records taking from the plaintiff a complaint of pain in his right leg, numbness in the foot or other symptom referable to the low back (he did suffer a distinct injury to his right foot in the car accident but not of lingering relevant symptoms), but all record complaints of sciatic symptoms in his left leg.
(iii)The radiological evidence, being an MRI report dated 22 November 2000[26], records at the L4/5 level:
“There is posterior rupture of the disc annulus with a minimal posterior disc protrusion in the midline. This creates only minor encroachment on the anterior aspect of the theca, but no encroachment on neural structures.”
That is in contrast to the finding at the L5/S1 level of a posterior rupture of the disc annulus with moderate sized posterior and left posterolateral disc protrusion which was found to create compromise of the anterior and left anterolateral aspects of the theca and the left S1 nerve root. All medical opinion is to the effect that complaints of referred pain and sciatica in the left leg are consistent with the findings from the L5/S1 level and that there was no radiological reason for any referred pain or other neurological symptoms in the right leg from any lumbar disc level.
(iv)One document which appears to support the defendant’s argument that the plaintiff had a previously symptomatic L4/5 disc injury, is a typed claim form for the New South Wales Compulsory Third Party Department[27]. Question 24 asks “What are you[sic] injuries from the accident?” and while point 13 lists a disc prolapse on the left side at the L5/S1 level interfering with the left S1 nerve root, point 14 lists “ posterior rupture of the disc annulus at the L4/5 level with posterior disc protrusion in the midline. More importantly, under Question 25, “How do the injuries affect you now?”, at point 14, the form reads, “Back pain radiating down the right leg to the right foot”; at point 15, “Pain in the left knee” and “Clicking in both knees and over various parts of the body”. Apart from multiple other injuries not apparently related to the lumbar spine, there is no mention under Question 25 of sciatic symptoms, pain or numbness in the left leg.
I am satisfied, on the balance of probabilities, that in point 14 under Question 25, there was an error and it was intended to read, “Back pain radiating down the left leg to the left foot”. Mr Picozzi volunteered – before being asked a direct question to this effect – that he signed this document, but he otherwise claimed no recollection of it whatsoever and, as the document stands, it has not been proven who prepared it or in what circumstances or from what information. Even though the plaintiff signed it, given that it does not refer to the left sciatic symptoms which all doctors note were prominent in the plaintiff’s complaints of symptoms from his low back injury in that accident, I am satisfied that that point is a mistake and was intended to read “left leg and left foot”.
(v)The defendant also seeks to rely on an impairment assessment of 28 November 2001 by Mr Kevin Bleasel, neurosurgeon[28], which included “a permanent loss of each leg at and above the knee, taking into account below the knee, of 10 per cent”. Dr Bleasel listed the present symptoms as including, “The low back pain is distinctly left-sided and there is a left sciatica through the buttock and down the leg”, with no separate reference to right-sided sciatica. Further, on reading the full report, I infer that the assessment in respect of the right upper leg impairment may relate to the finding of straight leg raising on the right possible to 60 degrees. Whatever the basis of the finding of impairment in the right leg above the knee, it does not correlate with either the radiology described by Mr Bleasel, nor with his description of the low back pain being distinctly left-sided and there being left sciatica through the buttock and down the leg.
[25]Exhibits 15, 16, 18, 19 and 20
[26]Part of Exhibit H
[27]Exhibit 17
[28]Exhibit 15
47 The defendant’s counsel took me to each reference in medical materials from 2000 and 2001 to there being noted to be some disc pathology at the L4/5 level in the plaintiff’s spine following the motor accident in August 2000. The plaintiff’s counsel concedes that that is present and therefore the injury suffered by the plaintiff in the work accident on 8 February 2007 can be described as an aggravation to that preceding condition.
48 The more important question is whether, as the defendant argues I should find that condition to have been symptomatic before February 2007, by way of contribution to low back pain, and having produced right leg symptoms.
49 I have already explained why I reject the proposition that it had produced right leg symptoms, and it is simply impossible to say on the evidence whether the low back pain experienced after the motor vehicle accident included any contribution from the L4/5 disc, which was described as posterior rupture of the disc annulus with a minimal posterior disc protrusion in the midline, that created only minor encroachment on the anterior aspect of the theca, but no encroachment on neural structures.
50 The defendant decided after the first day of hearing to require Mr Xenos to appear for cross-examination on the basis that his report had not referred to the previous damage to the L4/5 disc and that such omission undermined Mr Xenos’s conclusion that the February 2007 incident had created a focal new right L4/5 disc prolapse, causing right-sided sciatica with pain and sensory disturbance in the right leg.[29]
[29]Exhibit D, report of 18 June 2008
51 Mr Xenos had proceeded immediately after that sentence to state that:
“This is on a background of a chronic spinal complaint following trauma, but unfortunately the recent flare up with the trauma at work has aggravated the situation and I think that correlates well and is consistent with the recent commencement of lower back and right leg pain on this occasion. Previously following the motor vehicle accident he had minor left leg pain.”
52 The defendant also argued that it was on Mr Xenos’s report that Mr Battlay relied in concluding, after examining the plaintiff for the defendant between July 2007 and March 2009,[30] that the L4/5 disc prolapse demonstrated at MRI scanning was a new injury as he previously only had left sided sciatica and that it was best regarded as being a primary injury as the right leg had not been affected previously and this was clearly the reason for his current condition.[31]
[30]Exhibit Q
[31]Report dated 17 July 2007
53 Notwithstanding those two opinions, each of the doctors did opine that his condition was one of aggravation of the back but that due to the lack of previous complaint of right leg symptoms, the onset of those symptoms after the February 2007 work incident, and the correlation between those and the MRI of May 2007 showing compression of the L5 nerve root, indicated to them that it should be regarded as a new injury.
54 Notwithstanding the inconvenience to a practicing neurosurgeon, I allowed an adjournment so that attendance by Mr Xenos could be arranged. I listened carefully to his evidence on cross-examination, and in my view, far from undermining the cogency of his opinions expressed in his report, having last seen the plaintiff in 2007, it reinforced the plaintiff’s case.
55 Mr Xenos confirmed that as his report reads, he had not seen the MRI of November 2000, and he had either seen the report or what the patient told him. When shown a copy of the November 2000 MRI report in court, he said that it showed two level disc disease, L4/5 and L5/S1, with the lower disc correlating well with the history at that time of left leg pain. As a neurosurgeon the relevance for him of degenerative disc is not as important causing back pain as what is causing leg pain, and the L4/5 changes were described as minor but more importantly they made no mention of any pressure on any nerve structure, so would not have been deemed relevant to the patient presenting with left leg pain[32].
[32]T 217, lines 12-24
56 He confirmed that the 2000 MRI did show degenerative disc change at L4/5 as well as at L5/S1, but that did not “infer causation”[33]. He said the terms degenerative disc disease and lumbar spondylosis are interchangeable terms, but disagreed that they mean a natural progression of degenerative change in the back over time – it is multifactorial, occurring in different degrees in different patients, and can accumulate and also helped along, aggravated and caused by trauma.[34]
[33]T 220
[34]T 225, l 9 to T226, l 2
57 He said the 2007 MRI of the lumbar spine showed “a very burnt out” L5/S1 disc, which suggested there was longstanding degenerative disc, the disc had probably collapsed, but importantly there was no evidence of nerve compression. He said there was new deterioration of the L4/5 disc because in the 2007 MRI there is shown right L4/5 herniation with a moderate size disc prolapse casing nerve compression, which was a progression from the previous scan of 2000. His clinical opinion was that it had gotten worse because it was herniating for the first time, on the right-hand side and that correlated with the history of him having right leg pain.
58 Taking all of these arguments, opinions, and findings of fact into account, I am satisfied on the balance of probabilities that in the work incident jof 8 February 2007 the plaintiff suffered injury to his L4-5 disc resulting in compression of the L5 nerve roots, and that this caused a distinct worsening of his lumbar spinal symptoms and the onset of symptoms in his right leg of pain, sciatica and numbness in the sole of the foot.
Consequences of the injury
59 As there was pre-existing damage to the L4-5 disc, the injury suffered may be categorised as an aggravation to underlying lumbar spondylosis, although the evidence in my view supports that there was no pre-existing compression or interference with the L5 nerve roots. In considering whether the consequences of an aggravating injury constitute a serious injury the court must consider the consequences that resulted from the aggravation, and that requires a consideration of the plaintiff’s condition and functioning or capacities before the subject injury compared with those after it and in particular the marginal difference that is likely to be permanent.[35]
[35]Petkovski v Galletti [1994] 1 VR 436; Filipowicz v AG Staff Pty Ltd [2012] VSCA60
60 As stated previously, prior to the incident the plaintiff was still suffering from low back pain which would trouble him at times and especially if he did not maintain his exercise regime, and every few months chiropractic treatment. From the day after the incident the plaintiff has suffered significant low back pain which varies in intensity, influenced by weather changes and by what activities the plaintiff does, or omits to do. If he does not do his exercises regularly it worsens, such as when he went on a trip to Malaysia and sat for 8 hours on the aeroplane and also did not pursue his usual exercise regime. While his pre-injury condition was not of a pain-free back, due to his 2000 injury, I am satisfied that the level and constancy of his low back pain substantially changed after the incident.
61 He also suffered right leg symptoms for the first time, of referred pain, sciatica and numbness in the sole of his right foot. Examinations over the following months confirmed marked limitation of movement, Mr Battlay found an absent right ankle jerk, and the severity of his symptoms led to an epidural injection in late June 2007, although that did not give great relief.
62 Mr Picozzi then decided that rather than consider surgery, he would address his condition as he had after the 2000 accident, by undertaking rehabilitation and exercise. He underwent an intensive program at Epworth Cedar Court, and discussed with his doctor what activities he could and could not continue, and what exercise he could undertake.
63 He has not been able to resume surfing, running, football training or mountain-bike riding. He has turned to road bicycling to replace all of these. I accept his evidence that his bicycle has been specially set up for him so that his posture is optimal in not aggravating his low back pain. He says that he now rides about 5 days per week, a 36 km route, totalling 180 km per week. He rides with one or more friends, and extensive surveillance produced film of him riding, changing a punctured tyre on his bike, and able to bend down to do this and lift the bike to turn it over. I accept that he is shown riding with apparent good function, but not at great speed, and I accept his description of the uphill climb showing difficulty. I take his statement that he “no longer rides for fun” but to maintain his fitness and weight, to mean that that is the driving purpose of riding so regularly and often, but he freely admits that he loves riding and also enjoys the social contact it he has by riding with friends. He volunteered that he road in bike races until the end of 2010, and two years ago did the 190km ride around the bay, although he suffered afterwards.
64 The defendant argues that the plaintiff’s retained capacity in bike riding is extensive. I agree that it is, and in the context of this type of application I would agree that bike riding could be seen to have replaced those sports which he cannot now do, including surfing and running, offsetting the loss of the other activities to his enjoyment of life, particularly when aged in his mid-40s he might not have continued with them all indefinitely.
65 He has been prescribed Celebrex which only takes intermittently every few weeks, especially in cold weather. He takes Nurofen more often, one to two per day about two to three times a week, but has tried to minimize medication and minimize attendances on doctors. He takes the medication when weather changes worsen his pain. He found physiotherapy helpful, but cannot afford it when not working. He describes his sleep as being disturbed by pain, and he regularly wakes about four times a night, and gets up and does exercises. Mr Xenos described as “splendid” when patients wean themselves off the medications and manage to deal with chronic pain by other means.
66 I have taken Mr Picozzi to be a man of considerable stoicism, who has not exaggerated his symptoms. His suffering should not be overlooked because he has been determined to remain as active as possible. On the other hand, he had faced a similar challenge previously and there was some lingering low back pain and intermittent but not frequent symptoms in his left leg. He also had ongoing neck pain which he managed similarly.
67 I am satisfied that he no longer regularly suffers as much in the way of right leg symptoms as he did in 2007 when he required an epidural injection, and his exercise regime seems to have helped him keep his symptoms under reasonable control.
68 The plaintiff’s counsel implicitly recognise that he does not demonstrate many of the types of daily limitations on activities or symptoms that are required to meet the test of being at least very considerable. They rely however, on his being unable to return to his long-time career as a plumber as significant so far as his pain and suffering is concerned. I accept this evidence that he had loved being a plumber – it gave him the freedom to do what he wanted and the money to do what he wanted to give his family a good life. He has lost that career – the occupation he entered as a teenager following his father, whom he lost before he could complete his apprenticeship. Although he does not strike me as a particularly sentimental man, I accept that in his case this has been a substantial loss to his satisfaction in life. The loss of ability to return to previous occupation can be taken into account in considering the pain and suffering consequences of his injury[36].
[36]Hunter v TAC [2005] VSCA 1
69 While the consequences brought about by the back symptoms alone would not in my view meet the necessary test of seriousness, when added to the consequences of the added right leg symptoms[37], and the loss of his long term occupation, I find that he fairly meets the test of these consequences being more than considerable.
[37]Not an aggregation of injuries but of consequences from the L4-5 disc injury caused in the incident
Loss of earning capacity
70 For more than 25 years the plaintiff had worked in the plumbing trade, including running his own business, and employed on large commercial construction sites. He was unable to work in that field for approximately three years after his injuries in the motor vehicle accident of August 2000, but determinedly rehabilitated himself to defy his treating surgeon’s predictions, and in 2004 had managed to return not only to restricted plumbing duties, but to working on large commercial sites where pay rates and allowances reflected his ability to engage in sustained physically demanding duties. His tax returns and payslips where available confirm his own evidence that for more than two years before the incident he had managed to work for sustained periods on commercial construction sites. He says, and the wages material supports, that his employment with the defendant paid more than the previous work, especially including allowances.
71 I must assess a gross annual figure which fairly represents his “without injury” earning capacity from personal exertion, taking into account his earnings for the three years before and three years after the injury suffered on 8 February 2007.[38] His gross annual earnings for the relevant financial years[39] were significantly greater in the financial year ending 30 June 2007 which included his four months of employment with the defendant. That year his earnings employers totalled $82,880, including allowances.
[38]S134AB(38)(f)
[39]Exhibit J
72 Notwithstanding that his employment prior to that with the defendant had not paid as much, the defendant does not seriously dispute that it would be appropriate to use the plaintiff’s gross earnings from personal exertion in the financial year ending 30 June 2007. However, it argues that on a proper application of the expression “personal exertion”[40] there should be deducted from the total of $82,880 the amount of $4,154 which is recorded as an eligible termination payment, bringing the balance of the earnings from personal exertion to $78,726 as an annual gross figure.
[40]Incorporated from s6 of the Transport Accident Act through s134AB(38)(f)
73 The defendant argues first that the plaintiff ought not be allowed to cherry-pick the best weeks of earnings, but that it is fairer to take the annual total, which in 2007 included his period of earnings with the defendant both before and after injury, his earnings between July and November from his previous plumbing employment, and from Easter until the end of June on WorkCover payments.
74 The plaintiff’s case is primarily put on the basis that the full gross earnings, including the eligible termination payment, should be included, because the definition of earnings from personal exertion enables it to be included, as it includes “retiring allowances and retiring gratuities”. Further, it is argued that an eligible termination payment was not unique in the plaintiff’s trade, and in the assessment of the plaintiff’s without injury earnings, because one other is included in the three previous years, namely a lump sum of some $1,741 in 2005.
75 As eligible termination payments are included in the definition of earnings from personal exertion, I am of the view that they should not be wholly excluded. However, in my view they should not automatically be included in full, because the issue is a fair assessment of the plaintiff’s ongoing earning capacity had he not suffered the subject injury. Only two years previously the plaintiff had received another eligible termination payment, although a lesser amount than with the defendant. The amount from the defendant, of more than $4000 when he had been working for the defendant for less than five months, reflects that the remuneration from the defendant was substantial.
76 I am satisfied that the nature of the plaintiff’s pre-injury employment, once he resumed plumbing full-time in Melbourne, was that he was capable of working on well-paid projects which were quite likely to involve significant components of site or overtime allowances, and also to include eligible termination payments if he were employed at the time the project was being concluded. He had managed to obtain and sustain such employment with at least five employers over less than a three year period, and I am satisfied that without injury he was likely to continue to choose such better remunerated jobs regularly. On the other hand, his particular earnings with the defendant were higher than he had previously been earning – the previous financial year totalling $61,414 with allowances. I infer from his evidence which I accept, that if he had not been injured he expected to take further work through the defendant on the freeway project, that he would have received similar level of wages with allowances for a further period, in addition to the eligible termination payment.
77 As the rates of pay involved are now five years out of date, and under the definition are to be compared with present-day earning rates, I have decided to moderate only marginally the full amount of his income from employers in the 2007 year, to take into account that it includes the termination payment. I have decided that $82,000 is a fair assessment of the plaintiff’s without injury annual gross earning capacity.
78 Use of that figure means that plaintiff must prove that his capacity for suitable employment does not currently exceed $49,200 (60% of $82,000) and is unlikely to improve for the foreseeable future.
79 I am satisfied that the preponderance of medical evidence supports that Mr Picozzi is now and for the foreseeable future is unlikely ever to be fit to resume full-time work as a plumber. Only Dr Stevenson says that he could do any job. He says that even those persons who have the most severe disc prolapse requiring surgery have been found able to return to normal, unrestricted duties, but acknowledges that “common-sense prudence may be reasonable”[41] .
[41]Exhibit 6, assessment para 3
80 All other doctors are specific that Mr Picozzi is (or was when last examined) unlikely ever to be fit to work again at his pre-injury duties or at duties requiring heavy lifting or repeated bending or lifting.
81 The defendant argues that as Mr Picozzi managed to get back to full-time heavy plumbing duties after his motor car accident, despite medical opinions predicting he could not, I should not accept the current medical opinions to the same effect. I disagree. Mr Picozzi defied medical opinion after his earlier motor vehicle accident and determinedly rehabilitated himself to the extent that he could resume full-time heavy plumbing duties. At first after the current injury he thought he could do the same, but by late 2007 accepted that he could not do so again. Whether, as he says, that was because Mr Xenos indicated that he could end up in a wheelchair if he did, or, as Mr Xenos himself said he was unlikely to have used the expression of “ending up in a wheelchair”, but could well have told the plaintiff that he would be unwise to do so given his back condition, does not matter. I am satisfied that the preponderance of medical opinion is that he would be unwise to return to such duties because they would risk his condition worsening, so his decision to not attempt to do so has been reasonable.
82 There is also no issue that the plaintiff has capacity for alternative work, and has been well motivated to find and sustain such other employment.
83 He undertook courses to retrain, including an introduction to computers. He said he completed only nine of the eleven weeks, as he had to ring in to say he had problems with his back, and they put the balance of the course on hold. Nevertheless, he regards himself as being competent in the use of computers, and has one at home. I do not take this to be sufficient for him to enter an “IT” type career, but he would be capable of a job requiring standard entry of information or search for information on a computer.
84 In late 2007, when assessed by ‘Worklife’ for the defendant’s insurer, Mr Picozzi was expressing the desire and intention to undertake study to become a physical education teacher. He said in his oral evidence that he has accepted that he is most unlikely to gain entry into a university Bachelor’s degree, or be able to complete it, as he has found the study he has undertaken difficult having no formal schooling since year 10. I am satisfied that Mr Picozzi has approached prospects of retraining with determination and considerable motivation, and I accept his evidence that from what he has attempted he is of the view that he is unlikely to be given entrance into a degree course, and is unlikely to be able to cope with one, having not had enough background in formal education. I am satisfied that if he thought he could complete a degree course he would undertake it.
85 He did commence a course for the Certificate IV in Training and Assessment, in order to seek employment as a vocational education teacher. He had to cease that course, as he was unable to continue due to an intensity of pain whilst driving to the course, and he struggled with the intensive workload involved in the course.
86 In his oral evidence he said that he had done training as an integration aide, not as a TAFE teacher, and had worked as a volunteer integration aide at a local school, but decided he could not sustain such work as he does not feel he has the patience and is at a stage of his life and age where he does not want to handle children of that age.
87 The defendant suggests that he could again run a plumbing business. However it is more than 15 years since he had his own business, and he did more on-site work leaving the administration to his partner. Further, he let his necessary plumbing licence lapse years ago (as opposed to registration), and I accept his evidence that it would take about two years of retraining to regain it given changes in the meantime. I am satisfied that it is unlikely that if he started a plumbing business now it could generate enough income to not only employ one or more plumbers to do the tasks he cannot himself do now, but also to earn enough to yield income to him of anywhere approaching 60% of his pre-injury earnings.
88 I am also satisfied that as a supervising plumber he would need to do “hands on” plumbing work which he is not capable of doing.
89 He would be capable of being a personal trainer, if confined to taking someone bicycle riding, but not capable of any further training involving running. Although no prospective pay rates were mentioned in evidence, I estimate he is unlikely to be capable of working enough hours per week at and confined to bicycle training to earn more than $48,000 gross.
90 In 2009 he in fact found alternative employment in retail bicycle stores. He initially worked at Goldcross on a casual basis, was disappointed not to obtain permanent employment there at the time, and then worked for Repco as a shop assistant. He was then offered permanent employment as an assistant store manager by Goldcross, and performed that work for more than two and a half years. However, in the month before the hearing he resigned from that employment, after the employer had been reorganised into a general sports goods store, and his duties were proving to require heavier and more consistent lifting than he had been previously required to perform. I accept that this extra lifting was increasing his back pain, such as when he was to move a treadmill without assistance. I am satisfied that the duties at that workplace did change to the extent that it ceased to be suitable employment for him due to his low back condition. I am satisfied that had he thought he could adapt to the arrangements he would have stayed, as he enjoyed the work and has been very highly motivated to find and keep work and to do so in a field which he enjoyed.
91 The question then becomes what other suitable employment for him exists, and its likely remuneration rates.
92 Medical opinion, apart from Dr Stevenson, is all to the effect that Mr Picozzi would be capable of employment, but not of jobs requiring heavy lifting, repeated bending or lifting and some add twisting. I am satisfied that he also has some limits on his tolerances to sitting or standing in one position.
93 During cross-examination, and after being shown film of the plaintiff undertaking his regular bicycle ride during which he stopped and changed a bicycle tyre, Mr Xenos’s opinion was that the film showed that the plaintiff’s back had improved compared to when he last saw him (in 2007), and that his level of function in the bike ride was demonstrated to be reasonably good[42]. He thought he has an ability to work at light duties. However, he contrasted the bending shown in the film of the plaintiff changing a tyre beside the road to “bending all through the day, picking things up is another thing with regards to repetitive labour”.[43] He thought bending to pick up the bike and flip it over, when it looked light and less than 3 kgs, which the plaintiff was certainly able to perform, is different from work as he would understand it as a plumber, to day-in-day-out bending and lifting pipes and twisting. He acknowledged that there are differences in manual labour, but his “general statement” was that returning to pre-injury employment as a plumber and doing manual labour was very likely to aggravate his back with multi-level disc disease, and also aggravate leg pain and sciatica.[44]
[42]T 230–231
[43]T 235, Lines 5–10
[44]T 235, Lines 18–24
94 When he was again asked that if the plaintiff were able to change tyres like that it would demonstrate that the back had improved and he was able to do similar jobs like that, Mr Xenos replied “It depends how many times during the day you would do that. There would be a risk of aggravation. If indeed he was bending like that and replacing fifty tyres a day with that technique he would certainly challenge his spine.”[45]
[45]T 236, Lines 14–23
95 It was put to him he could be a supervisor of plumbers. I accept his evidence that a supervisor is required to be on the tools, and he disagreed that there were jobs for supervision alone which did not require actually doing the plumbing work.
96 Addressing the suggested occupations in the Health e Works reports obtained by the defendant, I am satisfied that employment in sales of building or plumbing or hardware supplies would be unlikely to be suitable employment for the plaintiff as such goods are likely to regularly include many too heavy for him to lift.
97 I am satisfied that he is not currently trained to be an employment consultant, and there is no specificity as to whether jobs exist for employment consultants confined to areas of his experience such as plumbing or similar trades.
98 I am satisfied that he could do general sales assistant work, provided his lifting duties were limited in weights and frequency, and that prolonged standing in one place were not required. The suggested pay for such positions, even at the highest level suggested ($802 per week)[46] would not exceed 60% of his pre-injury earnings. Depending on the goods and working conditions, he could well be capable of being a retail supervisor, but the average pay rate provided for that occupation, $864 would also not exceed 60% of his pre-injury earnings.[47]
[46]Exhibit 10, option 2 – grade 4
[47]Exhibit 10, option 6, albeit as at August 2010
99 The strongest argument for the defendant is that in Mr Picozzi’s last employment, he earnt $49,965 gross in the 2012 financial year. It is said to have included abnormally high bonuses from an unusual extra sales period, but as the definition of earnings from personal exertion includes bonuses, and as all allowances have been included in the earnings from the defendant, it would not be appropriate to adjust that figure downward for that reason.
100 I am satisfied that Mr Picozzi’s most recent employment as an assistant manager of a bicycle store with Goldcross, in what Dr Thomas describes as an ideal job for him, where he could avoid repeated or heavy lifting, move at will and adjust his positions, perform partly supervisory duties, and earn bonuses, was a reflection of his optimum current earning capacity. The question though is whether it is still suitable employment for him. I am satisfied that the position of assistant manager at Goldcross is no longer suitable employment for him for reasons already state. This was a niche position and there is no evidence that there still exists as a real job another like it. Offering the bonuses it did, it clearly paid more than the average rates provided either for a senior sales assistant or for a retail supervisor.
101 While the test to be applied is not whether there is currently a job available that is suitable employment for the plaintiff, but whether such a job exists and would pay more than 60% of his pre-injury earning capacity. I am satisfied that there is not such a position of suitable employment for him which would currently earn more than $48,000 gross, even including average bonuses or allowances.
102 The plaintiff therefore satisfies the test for a “serious injury” as to loss of earning capacity, in that when judged by comparison with other cases in the range of possible impairments, the permanent loss of earnings consequences of his injury can fairly be described as more than significant or marked and at least very considerable. He also satisfies the test of suffering loss of earning capacity of at least 40% under s 134AB(38)(e).
103 As a matter of statutory interpretation, by satisfying the test for a serious injury as to loss of earning capacity, he is entitled to bring proceedings for damages for both pain and suffering and loss of earning capacity[48] .
[48]Advanced Wire & Cable Pty Ltd v Abdulle [2009]VSCA170 at paras [58] – [64]
Conclusion
104 I am satisfied that Mr Picozzi suffered injury to his lumbar spine at the L4/5 level in the course of his employment with the defendant on 8 February 2007, and that the likely permanent consequences of that injury to him satisfy the definition of “serious injury” both as to pain and suffering and loss of earning capacity. Accordingly I intend to grant him leave to bring proceedings for both pain and suffering and pecuniary loss damages.
CI – 11-00394
Picozzi v Direct Skills Pty Ltd
Schedule of Exhibits
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Court Book Ref | Tendered by |
| A | Plaintiff’s affidavits sworn on 3 Sept 2010; 5 March 2012; 1 November 2012. | PCB pg 9-21 | P |
| B | 3 reports of Dr Simon Wong dated 29/06/2007; 27/08/2007; 28/07/2008 | PCB Pg 28-32 | P |
| C | 2 reports of Dr Lyndsey Kabat 07/05/2008; 26/04/2010 | PCB Pg 33 - 34 | P |
| D | Report of Mr Chris Xenos dated 7/06/2007 and 18/06/2008 | PCB Pg 35-38 | P |
| E | Report of Catherine Johnson dated 05/10/2009 | PCB Pg 39-41 | P |
| F | Report of Assoc Prof Richard Bitter dated 09/11/2011 | PCB Pg 58-61 | P |
| G | Report of Dr Clayton Thomas dated 13/12/2011 | PCB Pg 62-65 | P |
| H | CT lumbar spine dated 14/04/2007 MRI Lumbar spine 30/05/2007 MRI report dated 22/09/2000 | PCB Pg 66-67 DCB Pg 101 | P |
| J | Amended Summary of Plaintiff’s total taxable income including allowances dated from 2004-2011 | PCB Pg 68A | P |
| K | Plaintiff’s pay advices from Cooke and Carick Vic Pty Ltd from 11/05/2004 – 22/06/2004 | PCB Pg 69A-69G | P |
| L | Pay roll advices sheet for date for Contract Hydraulics Services Pty ltd | PCB Pg 69H | P |
| M | Defendant’s payslips for Plaintiff for periods ending 08/12/2006 – 09/06/2007 | PCB Pg 70A-74 | P |
| N | Offer of employment and contract from Goldcross Cycles April 2010 | PCB Pg 75-81 | P |
| O | Pay records from Goldcross Cycles for Plaintiff for periods ending 30/07/2011 – 29/09/2012 | PCB Pg 82-89 | P |
| P | Workers Claim form – 08/05/2007 | DCB Pg 1-3 | P |
| Q | 4 reports from Mr Peter Battlay dated 17/07/2007; 23/05/2008; 02/03/2009; 25/05/2009; | DCB Pg 17-29 | P |
| R | Extracts from Plaintiff’s tax return for year ending 30/06/2012 | P | |
| S | Extracts from Plaintiff’s tax return for year ending 30/06/2005 | P | |
| 1 | 3 discs of surveillance of P being on 21/04/2012 and 09/02/2012 and 03/11/2012 | D | |
| 2 | Employer’s claim form dated 17/05/2007 | DCB Pg 4-5 | D |
| 3 | Work cover certificate of capacity dated 08/02/2007 | DCB Pg 6-7 | D |
| 4 | Treating practitioner’s Questionnaire (from Dr Gopathy) stamped 18/06/2007 | DCB Pg 14-16 | D |
| 5 | Report of Dr D Fish dated 03/12/2008 | DCB Pg 30-34 | D |
| 6 | Report of Dr Stevenson dated 20/02/2012 | DCB Pg 35/41 | D |
| 7 | JSA Vocational assessment report dated 18/10/2007 | DCB Pg 42-50 | D |
| 8 | 104/130 Week Vocational assessment report | DCB Pg 73-83 | D |
| 9 | Worksite assessment dated 10/11/2008 | DCB 84-86 | D |
| 10 | Reports on Labour Market/Wage Information from Health –E Work dated 29/02/2012 and 27/04/2012 | DCB Pg 87-91D | D |
| 11 | Incident report dated 08/02/2007 | DCB Pg 92 | D |
| 12 | Worker’s resume undated | DCB Pg 93-95 | D |
| 13 | Report of Mr P Giblin dated 24/11/2000 | DCB Pg 103 | D |
| 14 | Functional Capacity Evaluation dated 02/08/2001 | DCB Pg 106-138 | D |
| 15 | Report of Mr K Bleasel dated 28/11/2001 | DCB Pg 150-153 | D |
| 16 | Report of Mr J C Beer dated 08/07/2002 | DCB Pg 165-168 | D |
| 17 | Compulsory Third Party claim form dated 02/02/2001 | DCB Pg 173-180 | D |
| 18 | Report of Dr J Bodel dated 22/11/2001 | DCB Pg 185-187 | D |
| 19 | Report of Mr J Matheson dated 16/11/2001 | DCB Pg 193-196 | D |
| 20 | Report of Dr I Meakin dated 06/03/2001 | DCB Pg 198-199 | D |
| 21 | Reports of Mr Chris Xenos to general practitioners dated 18/07/2007 and 01/05/2007 | D | |
| 22 | Page of Progress notes of Dr Gopathy from 08/02/2007 to 28/03/2007 | D | |
| 23 | Plaintiff’s tax return for financial year ending 30/06/2007 | D |
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