Pistone v Care Park Pty Ltd
[2013] VCC 1293
•11 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04868
| CLAUDIO PISTONE | Plaintiff |
| v | |
| CARE PARK PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 30 August 2013 | |
DATE OF JUDGMENT: | 11 October 2013 | |
CASE MAY BE CITED AS: | Pistone v Care Park Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1293 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – low-back injury – pain and suffering and loss of earning capacity – relevant principles – whether “serious”
Legislation Cited: Accident Compensation Act 1985 s134AB(38)(a)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR; Sabo v George Weston Foods [2009] VSCA 242; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Hayhill v Hodge [2006] VSCA 194; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121.
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect of low-back injury suffered on or about 8 August 2009 in the course of his employment with the defendant. Application in relation to pecuniary loss damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr J Fitzpatrick | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr S Loftus | Herbert Geer |
HIS HONOUR:
Introduction
1 By way Originating Motion issued on or about 8 October 2012, Claudio Pistone (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for an injury to his low back suffered by him during the course of his employment on 8 August 2009 (“the injury”) with Care Park Pty Ltd (“the defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.
3 The plaintiff, the former general practitioner of the plaintiff, Dr Fraser; and the treating surgeon of the plaintiff, Mr B O’Brien, gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of or in the course or due to the nature of his employment with the defendant on or after 20 October 1999;[3]
(b)“the injury” and resulting impairment must be “permanent” – that is, permanent in a sense that it is “likely to last for the foreseeable future”;[4]
(c)the consequences of the low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as more than significant or marked, and as being at least very considerable”.[5]
Such requirement is sometimes referred to as the “narrative test”.
[3]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622 at [11]
[4]Barwon Spinners Pty Ltd & Ors Podolak (op cit) at [33]
[5]Section 134AB(38)(b) and (c) of the Act
8 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:
(a)that as at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7]
(b)that after the date of hearing he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]
[6]Section 134AB(19)(b) and (38)(e) of the Act
[7]Section 134AB(38)(e)(i) of the Act
[8]Section 134AB(38)(e)(ii) of the Act
9 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken or counted for the purposes of paragraph (c) of the definition of “serious injury”;[9]
(b)must make the assessment of “serious injury” at the time the application is heard;[10]
(c)disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]
(d)notes that s134AB(38)(b) provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
In the event that a worker satisfies sub-paragraph (i), but not sub-paragraph (ii), of s134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. The worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[12]
(e)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[13]
[9]Section 134AB(38)(h) of the Act
[10]Section 134AB(38)(j) of the Act
[11]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23] – [36]
[12]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and in particular at [60] – [64]
[13]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 592 and 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The issues
10 Counsel for the defendant informed the Court that the defendant took issue with both the claim for leave to bring common law proceedings for pain and suffering damages and pecuniary loss damages. When queried as to whether or not there was any issue as to the plaintiff suffering a compensable low-back injury, whether such compensable injury has given rise to some permanent impairment and whether there are consequences, I was informed by counsel for the defendant there was no such issue. However, it was submitted that the consequences of such permanent impairment did not satisfy the narrative test in relation to pain and suffering and in any event, the plaintiff was capable of earning more than 60 per cent of his “without injury earnings”. In essence, counsel for the defendant described the nature of the defence to be one what is generally referred to as a “range case”.
The evidence of the Plaintiff
11 The plaintiff gave evidence that his affidavits sworn on 14 June 2012[14] and on 10 July 2013[15] were “true and correct”.[16]
[14]See Exhibit A at page 10 PCB
[15]See Exhibit A at page 38 PCB
[16]Transcript (“T”) 2 L10-13
12 The plaintiff also gave evidence that his wife is employed on a full-time basis and they have a child, now aged five years.
13 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
·He is thirty-seven years of age (having been born in December 1975) and is married to Mary Jovic and has one daughter named Amelia.
·He was born and grew up in Melbourne, completing his VCE in 1994 at Williamstown Secondary College, after which he obtained work in 1995, which continued until the date of his injury on 8 August 2009. In particular, he was employed in the following capacities:
-From 1995 to 2005, he was employed with Pan Macmillan Australia, initially as a sales and marketing assistant (1995-1996), then as stock and logistics manager (1998-2002) and then as stock and logistics manager/export account manager (2002-2005);
-From August 2005 to January 2006, he was employed as operations coordinator with F J Thytherleigh Logistics;
-From January 2006 to April 2006, he was employed as an account manager with Display Direct Pty Ltd;
-From April 2006 to June 2007, he was employed as a shipping coordinator with Hunter Leisure Pty Ltd.
·In July 2007, he commenced employment with the defendant as a site manager, being responsible for a number of car parking premises principally in the Melbourne CBD/Docklands area.
·During the course of his employment on Saturday, 8 August 2009, he commenced work at 5.00pm and at 6.00pm was working at the Northern Car Park located in Docklands Drive, New Quay, Docklands. He noticed that a temporary entry/exit on Little Docklands Drive had been left open by a contractor and temporary fencing had not been put in place to stop vehicles entering the temporary opening. There were about four to six concrete blocks which formed the base of the temporary fencing. These blocks were picked up and moved by the plaintiff, who experienced a “sharp pain my lower back which ran down my left leg to my foot”.
·He attended his then general practitioner, Dr Donald Fraser, on or about 17 August 2009, who referred him for physiotherapy with Mr David Philipps, and later to the neurosurgeon, Mr Brendan O’Brien.
·In September 2009, he was referred by Dr Fraser for x-rays and on 29 September 2009, he underwent an MRI scan of his lumbar spine which revealed that he had an L5-S1 protrusion.
·On being referred to the neurosurgeon, Mr O’Brien, in early November 2009, he was initially treated with a short course of Prednisolone and underwent a further MRI scan in January 2010, which revealed a lateral disc bulge component at the L5-S1 level which he was informed was pressing on the left S1 nerve root.
·He then underwent an epidural steroid injection and ultimately underwent surgery performed by Mr O’Brien on 2 September 2010. He had been admitted for surgery on 21 July 2010 but due to a reaction with the dye that was to be injected for a CT scan, the surgery had to be postponed until September.
·At the time of the first affidavit, he was currently not working and spending a great deal of time looking for work on his computer.
·He is presently certified as fit for modified duties, light clerical work and no lifting, and for five hours a day, three days a week.
·He describes the “consequences” of his back injury as follows:
-He has been diagnosed as suffering from disc bulges at T10-11 and T11-12 brought about by the “rigidity” of the L5-S1 level of his spine.
-He has significant scarring from the surgery which he finds has a strange sensation of being numb and extremely unsightly and ugly.
- Prior to the injury he considered himself very fit and healthy and literally “loved” sport.
-He is presently on the following medication – 100 milligrams of Tramadol, one tablet twice per day; Celebrex 100 milligrams, one tablet twice a day; and Somac 40 milligrams, one tablet in the evening. He was also taking Temazepam, but this has ceased.
-He has continuous aching pain and discomfort when sitting, walking or standing for long periods and he would describe the pain as a strong and aching pain. It is particularly bad at night and can also be very bad in the morning.
-At times he has flare ups and he does seem to aggravate his back and this can mean being bedridden for three to four days.
-He has pain and discomfort when bending, stretching or twisting and every day he has a pain level of 8 and occasionally a very sharp pain of 10.
·Dr Fraser referred him to see a psychologist, Mr Alan Williams, who is treating him for depression related to chronic pain and insomnia caused by the work-related back injury. He sees Mr Williams on a fortnightly basis.
·Dr Fraser continues to be his general practitioner and he consults with him every three months, although it appears there is little he can do for him by way of further treatment.
·Mr Brendan O’Brien recommended hydrotherapy and Pilates and he attends hydrotherapy twice a week at Sanctuary Lakes but has no funding to attend Pilates.
·Before the injury, he really enjoyed working and he would “love to be back working”. He has been actively looking for work since April 2011 and has interviews by phone but believes that after discussing his medical certification interest wanes.
·He has investigated data entry jobs which he could do part time at home and has applied for such jobs online with no reply. He is currently looking for part-time office clerical administrative work.
·When it comes to future work he is “really very worried” as he has a young family and believes that he will be only capable of a light role limited to part-time work.
·He also describes what he terms “further consequences”:
- He can walk but the length of time he can do this varies and there are days where he can walk as little as 200 metres, whereas on other days he can walk for up to 20 to 30 minutes.
-Travelling in a car is painful for him and after approximately 30 minutes of travelling he is in significant discomfort.
-It now takes him a lot longer to shower and get dressed than before he was injured.
-He has difficulty lifting, bending, stretching, twisting, sitting, standing and walking for long periods of time.
-As to bending, he has lost movement in his low back and gains pain when he flexes forwards and backwards and also avoids sitting longer than approximately 30 minutes at one time due to pain. When walking he also avoids using stairs or walking on unstable or unlevelled ground.
-Mr O’Brien has recommended that he does not ride a pushbike other than an exercise bike due to the risk of falling.
-His intimate life with his wife has been severely affected and he has sleepless nights due to discomfort and pain. In particular, he has broken sleep every night.
-He was a good all rounder and loved physical contact sports and before the injury he was playing indoor soccer competitively once or twice a week, but also played golf, tennis and football when he could. All these activities have been affected.
-He was very domestic around the house and loved spending time in the garden and working in the house or helping friends with their houses.
-Prior to the injury, his social life was “great” and he enjoyed being “very adventurous” and going away on holidays and camping with friends.
-He has not been allowed to play any contact sports in his life again, as he has been told that to take a fall could be very dangerous for his back.
-His ability to play tennis has been affected as he cannot twist his body to hit the ball and twisting and bending to pick up a golf ball causes great difficulty.
-He has difficulty engaging with his daughter and notes that she now weighs around 20 kilograms and he “totally” avoids picking her up.
-He has been advised by Mr O’Brien that he can only get ten to fifteen good years out of his disc replacement and then his back will start to lose movement because of tissue build up.
14 By way of his second affidavit, the plaintiff gives the following pertinent evidence:
·Since swearing his first affidavit he has continued to experience pain, discomfort and restriction in his back and there has been no significant change in his symptoms since then and in particular, he suffers severe pain and discomfort when bending, stretching or twisting.
·Dr Fraser continued to be his treating general practitioner up to till approximately mid to late 2012 and his last certificate of capacity “certified me to undertake light clerical work with no lifting for five hours per day, three days per week”.
·In approximately late 2012, he commenced treatment with Dr Ismail at the same clinic, as he found Dr Ismail “to listen” to his problems and she assists him with strategies on how to best deal with the ongoing pain and restriction that he faces.
·He last saw his treating neurosurgeon, Mr Brendan O’Brien, on 4 December 2012, when Mr O’Brien suggested that he undergo a further MRI scan but he is reluctant to do so in part because of his bad reaction to the dye during the CT scan on 21 July 2010.
·He ceased seeing the psychologist, Mr Alan Williams, in approximately mid 2012 as WorkCover had not paid his bill. Furthermore, he was undertaking self-monitored pool exercises up until the start of 2013 but WorkCover has not approved funding for a further pool membership.
·Dr Ismail prescribes medication and although she has suggested that he attempts to reduce his medication intake, she continues to prescribe Tramadol, Celebrex and Somac. He notes that he has been able to reduce the medication intake but still needs to take it on several occasions per month and in June 2013, he experienced a period of such intense pain that he was essentially bedridden for seven days, during which time he had to resume his usual medication regime.
·Since approximately October 2012, he has been performing voluntary clerical work for a friend, Mr Julian Dieckhaus. He notes that his friend is setting up a number of serviced apartments in the Docklands area as a side project and he has been undertaking administrative duties, such as making phone calls and sending emails to prospective clients, setting up procedures and assisting in organising the marketing and advertising of the properties.
·He notes that he his “grateful for this role” as it allows him to get out of the house and keep his brain active. However, he notes he has been able to cope with this role very well and is often required to leave early or not be able to attend because of levels of pain.
·As the position is “unpaid”, he is able to “come and go” as he pleases and his friend is aware of his “very significant restrictions”. He comments that he would find it extremely difficult to find a job like this in the real world, as he is “unreliable and inconsistent”.
·He has put on approximately 8 kilograms of weight since his low-back surgery as he is restricted in his ability to exercise.
·He notes that:
-He continues to experience fluctuations in his ability to walk, varying from walking as little as 200 metres to being able to walk for about 20 to 30 minutes.
-He tends to avoid driving distances and will stop at the side of the road or a service station for a break.
-He has been unable to recommence any of the sports he was passionate about, such as golf, indoor soccer or tennis.
-His daughter is now four-and-a-half and weighs some 24 kilograms, which prevents him lifting her, and he has trouble interacting with her.
15 Before referring to the cross-examination of the plaintiff, it is appropriate to refer to the other affidavits relied on by the plaintiff.
16 In his affidavit sworn 21 March 2013,[17] Julian Dieckhaus gives evidence that he is the general manager of “Vector Facility Management”. He met the plaintiff when the plaintiff was working for the defendant and they had offices near each other.
[17]See Exhibit A at page 34 PCB
17 He became aware that the plaintiff suffered a back injury when working for the defendant and kept in contact by phone every couple of months and saw each other socially on occasion as he had a daughter the same age as the daughter of the plaintiff.
18 In about September 2012, Dieckhaus set up a number of serviced departments in the Docklands area and he contacted the plaintiff to see whether he would like to “help out on a voluntary basis”. In particular, Dieckhaus states:
“The offer was made because I knew Claudio needed to get out of the house and use his brain more.
Claudio has been undertaking very basic administrative and clerical work such as fielding client enquiries and making phone calls to attract clients to the apartments. The work he undertakes is very light and sedentary.
His hours each week are not fixed and have been extremely variable. I would estimate that he undertakes his tasks on average 4 to 8 hours per week. I don’t believe he has worked more than 15 hours in any one week.
There is no consistency in his ability to undertake the work and there have been many occasions in which he has had to leave early because of his back pain or call me and advice [sic] that he cannot do any work at all. Whilst Claudio is very conscientious, he unfortunately is not reliable or consistent due to his physical problems.”[18]
[18]See Exhibit A at pages 34-35 PCB
19 I also refer to the affidavit of Mr Greg Vandeligt sworn on 2 May 2013.[19] Vandeligt asserts that he has known the plaintiff for some eleven or twelve years and initially met him when they were both members of the same indoor soccer team. Vandeligt notes that they played soccer competitively one to two times per week and that the plaintiff was a very active member of the team until 2009 when he has “no longer been able to play soccer”.
[19]See Exhibit A at page 36 PCB
20 In particular Vandeligt gives evidence that;
“Prior to Claudio’s injury our friendship centred a lot on physical activities and sports. When we saw each other it was often to play sport. We would have a hit of social tennis or social golf. Often my wife and I would also see Claudio and his wife riding their bikes. Since Claudio was injured he has been unable to partake in such activities and whilst we still catch up, we can no longer do any physical activities.
My son and Claudio’s daughter are similar ages. I notice when we have social outings with the kids that Claudio is not able to pick up his daughter to give her a cuddle or play with her in the same manner in which he once was able to.
Claudio is a very tough soul and also a private person. On occasion, however, I notice that he is frustrated and upset by the restrictions that he now has.”[20]
[20]See Exhibit A at pages 36-37 PCB
The cross-examination of the Plaintiff
21 Under cross-examination, the plaintiff accepted that he rendered invoices to Pan Macmillan dated 8 August 2009, 4 October 2009, 14 November 2009 and 24 December 2009 in respect of work involving putting a number of inserts in a prepaid envelope, closing the enveloping and then arranging for such letters to be forwarded to various book outlets. The plaintiff explained that he commenced performing such work when he left Pan Macmillan on the basis that he could do it “cheaper” than another company.
22 The plaintiff described that after the date of his injury, he did not do any physical work and that his wife was the actual person who was putting the documents in the letters to be forwarded to the customers of Pan Macmillan. Prior to the injury, the plaintiff accepted that he had done such mailing work from 2005 until his injury.
23 In particular, the following evidence was given:
Q: “It was always the case that friends and family did the work? ---
A: Before 2009, before the injury, I would do the work, but after the injury, I couldn’t do it, so friends and family helped out.
Q: Mr Pistone, your evidence earlier was that friends and family did this work for you before the injury?---
A: Yes, they helped. My mum loved doing it, so she always came over and helped me.
Q: In circumstances where friends and family were doing it before the injury and after the injury, nothing much had changed, in the sense that work was still being done by friends and family and you were invoice for it?---
A: No. So at the beginning, it was me that did the work. My mum would come and help me do it, but after the injury, it was friends and family that volunteered to help out.”[21]
[21]T7, L23 – T8, L6
24 The plaintiff also gave evidence that he is “literate in computers”[22] and that he has undertaken approximately a one-week course, during which time he learned about Excel and Word and obtained an Australian Trainees System Certificate in Office Administration Level 3.
[22]T14, L12
25 The plaintiff also accepted that he has a “LinkedIn” page and in particular, he was referred to a reference on that page suggesting that he held a Diploma of Aviation obtained from Moorabbin Airport during the period 1995 to 1998. The plaintiff denied holding any such qualification or having any knowledge as to how it came to be on that page. Furthermore, the plaintiff denied giving any history to any doctor of any such qualification. In particular, the plaintiff gave evidence that he had only been to Moorabbin on one occasion with a friend where they paid to have one lesson and that is his only contact with that airport.
26 The plaintiff also gave evidence that his treating general practitioner was Dr Donald Fraser up until 15 March 2012, at which time he ceased seeing Dr Fraser and commenced treatment from Dr Ismail, who works at the same clinic.
27 The plaintiff gave evidence that he ceased attending Dr Fraser because:
“… I felt that when I was going into his office, the clinic, he wasn’t listening to my needs, so I felt that if I went to a different doctor in the same clinic.”[23]
[23]T20, L30 – T21, L2
28 The plaintiff accepted that when last seen by Dr Fraser on 15 March 2012, he was advised that he was fit for light clerical work – that is 15 hours over three days a week.
29 The plaintiff believed that he had been seeing Dr Ismail for about a year or so and attending that doctor every two to three months. He confirmed that he has not requested Dr Ismail to refer him to any other specialist in relation to his back.
30 He was queried about the level of his pain and medication and the following evidence was given:
Q: “If I could ask you about the pain that you are currently experiencing with you back, are you in pain at the moment?---
A: Yes, I am.
Q: Is the pain at the moment, has that been the same pain that you have experienced all year, or has it come and gone?---
A: The pain is always there and I have moments where it’s worse, but it’s constant.”
HIS HONOUR:
Q: “The pain you say which is constant, just take the last 12 months, for argument’s sake, do you say the pain has been constant over that period of time?---
A: Same.
Q: Where do you say the pain is?---
A: It’s my lower back, L5-S1.
Q: Sorry?---
A: L5-S1 disc, around that area, and down my left buttock.
Q: Into your left buttock? Just again, over the last 12 months, what medication, if any, over that period of time?---
A: The medications I’ve taken?
Q: Yes?---
A: I’ve taken Tramadol, Celebrex, Zomac, and last week I was told to take Valium and they’ve increased my Celebrex from 100 milligrams to 150 milligrams.
Q: Can you translate that to frequency either on a daily, weekly, or monthly basis, whatever it is?---
A: Okay. Yep, so it’s, it’s daily.
Q: You take what daily?---
A: Yes.
Q: All of them, or ‑ ‑ ‑?---
A: Well ‑ ‑ ‑
Q: Can you just tell me what you do take daily?---
A: Okay, so the Celebrex, Tramadol and Zomac.
Q: The Celebrex, how many tablets would you take?---
A: It’s one, twice a day.
Q: So what, one in the morning, one at night?---
A: Yes.
Q: That is Celebrex. What else do you take on a daily basis?---
A: Tramadol.
Q: Is that one tablet, two tablets, what ‑ ‑ ‑?---
A: It’s one tablet, I think, twice a day, and the Zomac is one tablet one a day.
Q: Has that been the case for the last 12 months?---
A: Yes.
Q: You have just been recommended to go onto what?---
A: A higher dosage of Tramadol from 100 milligrams to 150 milligrams and I’ve also had three days of Valium to try and calm down the, the pain.
Q: Other than tablet medication, do you get any quasi-medical treatment like physiotherapy or anything like that?---
A: No, because the WorkCover insurance won’t pay for it.
Q: I see. Has anyone recommended you seek that treatment?---
A: Yes.
Q: Who?---
A: Mr Brendan O’Brien.
Q: What, physiotherapy or what?---
A: Yes, he said Pilates and hydrotherapy and, yeah, all the doctors have said physiotherapy or hydrotherapy.”[24]
[24]T24, L16 – T25, L31
31 The plaintiff commented that Dr Ismail had suggested that the medication be reduced because he has been on some type of medication for “four years now”. However, the plaintiff commented that he has been unable to reduce the medication as when he does, he has constant pain.
32 The plaintiff gave evidence that he has difficulty washing dishes because of the height of the sink, which is too low for him, has trouble bending and can only bend so his hands are just below his knees, has difficulty sitting for long periods of time because his pain worsens and becomes stiff after driving for any length of time. He did confirm that the family owns two cars and he drives an automatic Holden station wagon.
33 Under cross-examination, the plaintiff gave evidence that his weekly hours varied in relation to him assisting his friend looking after the ten apartments. He did give evidence that he worked the previous Monday to Friday and estimated that such work involved about 20 hours. He works from a small office based in Docklands, where he takes bookings and renders invoices to people who stay in the units. Such work involves the operation of the phone and a computer.
34 When queried how many weeks he works 20 hours or more, the following evidence was given:
Q: “So you referred to 20 hours that you worked last week. Have you worked this year in any other weeks where you’ve worked 20 hours?---
A: I’m sure I have, yes.
Q: Have you worked in any week this year more than 20 hours at this job in the Docklands?---
A: If I’d had a good week and I feel good, yes, I do.
Q: Are you able to estimate what percentage of weeks this year you might have worked for more than 20 hours in a given week?---
A: I couldn’t tell. Every week is different, it’s a different amount of hours. It depends how I wake up in the morning and if I make it or not.
Q: Could you say that half the time you do 20 hours a week, or more than half the time?---
A: It varies.”
HIS HONOUR:
Q: “Are you the only person in the office, as it were?---
A: Yes.
Q: Your friend, is it a he or a she?---
A: A he.
Q: What’s he doing during this time?---
A: He works for another company.
Q: Totally unrelated to the units?---
A: Yes, that’s right.”[25]
[25]T30, L27 – T31, L14
35 The plaintiff also gave evidence that sometimes he receives calls which are diverted to his house from potential users of these units. At those times, he takes notes of details of the potential client and then emails them the appropriate information when he can.
36 When queried as to why he was not being paid, the plaintiff stated:
“I’m, I’m not reliable. This was something that he – he saw how I was when I was at home and what I was going through, so he just said, ‘Come out and help, help out. Get out of the house,’ and, and that’s what I’ve done. I’m grateful that he’s allowed me to go out there and, and help him.”[26]
[26]T34, L2 – 8
37 Under cross-examination, the plaintiff accepted that if he was not performing the activity that he was, the owner of the units would need someone there to perform the clerical work.
38 The plaintiff also confirmed that part of his duties when assisting his friend at Docklands involved walking around various apartments to make sure that the cleaners had cleaned them properly. Also part of his duties involved taking various people to show them the apartments to see whether they were interested in renting such an apartment. When sitting at his desk in the office, he answers queries on the phone and electronically by computer.
39 The plaintiff accepted that such activities allow him to stand up and sit down when required but:
“… sometimes I even go to an apartment and lie down if my back’s hurting me.”[27]
[27]T37, L19 – 20
40 The plaintiff gave evidence that the normal opening hours of the “office” is usually from 9.00am to 5.00pm, although he is not there during that period of time. If all the apartments are fully booked, there is no need for him to be there. He did accept that he has worked a full day from 9.00am to 5.00pm and in particular, if the “check ins” are running late, he stays back to assist.
41 In particular, the plaintiff says that it is “not often” that he works from 9.00am to 5.00pm and in particular, he commented that he has to drop his daughter off at kinder so he never arrives there at 9.00am. Generally, he arrives at 10.00am or 10.30am and this somewhat depends on the time his daughter wakes up and when she goes to kinder.
42 When pressed, the plaintiff accepted that as at 12 August 2013, he had probably worked three or four 8-hour days during the month of August. He also believed that he had not been to the office about three or four days in the month of August.
43 The plaintiff described the normal situation during a weekday which involves his wife leaving at about 6.00am in the morning to perform work as a facility head operations manager, getting up when his daughter wakes up, after which he prepares her for kindergarten and later dropping her off at kindergarten.
44 When queried about his capacity for work, the plaintiff accepted that he has a background in clerical work. The following evidence was given:
Q: “So you’re able to do clerical work. The only impediment is that you need to stand up and sit down and move around?---
A: And work the days that I can make it into work. There’s a lot of flexibility that has to happen.
Q: If you were being paid to do the work that you’re doing for ACD Apartments, if there was another employer that offered you similar freedom and it was paid employment, you would obviously be able to do that, wouldn’t you?---
A: Yeah. Look, I love working. I’ve worked my whole life. I’m not saying that I don’t want to work and I can’t work. Yes, if there was this same role and I was paid, yes, I would do it with the conditions that I can come and go when I can and they would have to be flexible.”
HIS HONOUR:
Q: “How many hours would you say you would be able to do that a week?---
A: 15 to 20 hours.[28]
[28]T44, L20 – T45, L4
45 The plaintiff confirmed that he drives into Docklands and parks his car in a car space attached to one of the units.
46 The plaintiff was further cross-examined about his LinkedIn page detailing he held a Diploma of Aviation. In particular, the plaintiff gave evidence that to get into such site, you must have your own password or username. When queried as to how then there was the reference to the Diploma of Aviation on such site, the plaintiff initially stated he could give no explanation but then went on to say:
A: “I believe that there was a template once you log in. There could be a template in there and I just created my own, changed the words around and put my details in there.
Q: I can understand that. What I am getting at is – and I know you will answer this if you can, obviously – if what you say is correct that you know nothing of this, how does someone else presumably get in and put that into your LinkedIn site?---
A: I’m not sure they would get in, but I believe it could have been a template already in there that you can choose from and then change it to suit.
Q: Anyway, what you told me insofar as that appears in your LinkedIn or, for that matter, in any of the documents you were taken to yesterday, you have no knowledge of it and that is your sworn evidence is it?---
A: Yes, that’s right.”[29]
[29]T88, L11 – 25
47 The plaintiff confirmed that he commenced his activities at Docklands in or about September or October 2012. He was not working in March 2012 although he was searching various sites on his computer seeking appropriate employment. In particular, the following evidence was given:
Q: “Your evidence is that you’ve been looking for work on you computer. Is that right?---
A: That’s correct.
Q: What does that entail?---
A: Logging on and searching jobs on SEEK.
Q: Just on SEEK?---
A: MyCareer, SEEK.
Q: They’re on line classifieds for employment?---
A: That’s correct.
Q: Have you made any applications for any jobs?---
A: Recently?
Q: At all since the injury?---
A: Yes.
Q: How many applications have you made?---
A: There wasn’t many of them.”
HIS HONOUR:
Q: “Are you talking tens or hundreds?---
A: No.
Q: What are you talking about?---
A: At a guess 50 to a hundred.
Q: What sort of jobs have you applied for?---
A: All sorts. From home based roles to data entry, office clerical work.”[30]
[30]T95, L20 – T96, L3
48 The plaintiff gave evidence that he has got to the stage of being interviewed over the phone “a few times” but has not been offered any jobs. He gave evidence that he believed any chance of obtaining such jobs came to an end when he discussed his injury and compensation history. When queried about his ability to perform clerical work or management jobs as suggested by Dr Yong (insurance consultant, insurance agent, account clerk, account manager sales, marketing manager, supply and distribution manager and facilities manager), the following evidence was given:
“Q: I’m asking you now what do you say about your ability to do the work now?---
A: Now? If the arrangements are like currently now with the service departments where I’m working, yes.
Q: By that you mean what?---
A: Come and go whenever you like, to work between zero and 15 or 20 hours a week.
Q: Why do you choose 15 to 20 hours a week?---
A: Because with my experience, the hours that I have been doing with ACD Apartments, that’s where I feel my body can accept and work those hours?---
Q: If you worked over that, what do you believe would occur?---
A: I have tried working over those hours and then I suffer for it?---
Q: In what way?---
A: The pain and I had to stay home and stay in bed, and can’t move.
Q: You’re a relatively young man, Mr Pistone, what do you see your future doing? Do you have some intention of how things are going to unfold in the future?---
A: The future is not looking good.”[31]
[31]T99, L20 – T100, L6
49 The plaintiff was shown video film taking on 6 December 2012, 7 December 2012, 21 November 2012, 25 March 2013, 13 June 2013 and 19 June 2013 (“the video film”).[32] Such video film depicted the plaintiff standing for various periods in and around the Docklands area, walking in an unimpeded way, pulling a wheelie bin with his right hand, sitting at a desk for up to 14 minutes on the film where there was situated a PC, attending a service station, getting into and out of cars and some partial bending. In relation to such video film, the following evidence was given:
[32]See generally Exhibit 1
Q: “You were present in court and saw the surveillance footage that was shown to you?---
A: Yes.
Q: Was there any part of that surveillance footage which you would tell the court demonstrates that you were in pain?---
A: The pain is always with me, it’s always there. I’m not one that’s going to act or show it. Sitting here now, I’m in pain.
Q: In that footage, you were shown standing for long periods.”
MR MONTI:
“That’s not right, put the evidence to him.”
MR LOFTUS:
Q: “On 6 December 2012, you were standing outside 1.06 pm and until 1.13 pm were two males to them. You’ll see them laughing and smiling, would you accept that?---
A: Yes.
Q: Did you have any expression on your face in any part of that video which showed you in pain?---
A: This is just – I’ve learned to live with the pain, I don’t show any expressions.
Q: Was there any part of your movement in that video footage which showed you restricted?---
A: I don’t understand the question.
Q: When you were moving, walking, bending, getting in and out of your car, getting up from a chair, standing and talking with other workers outside the premises, standing with customers inside the premises, was there any restriction in your movement in that video which you would like to explain to the Court?---
A: What I saw on that footage was me sitting down, as I do every day, and standing up, which is everyday living, that’s what I do.”[33]
[33]T101, L1–27
The re-examination of the Plaintiff
50 Under re-examination, the plaintiff gave evidence that he considered it “most likely” that he was taking painkillers at the time that he was viewed in the video film.
51 The plaintiff explained that he sent out various applications for full-time employment, although:
“… I knew that I wouldn’t have been able to do the hours of a full-time job but I thought I’d just give it a go and just send out applications to see … .”[34]
[34]T103, L17-19
52 The plaintiff described how he loved working and that he needs to work.
53 In re-examination, the plaintiff also confirmed that he has constant pain that is “worse” when he sits down for too long when in particular, he experiences left-sided buttock pain. The plaintiff also confirmed that he had recently increased his dosage of Tramadol from 100 milligrams to 150 milligrams because:
“… I felt that the 100 milligrams wasn’t doing anything and I was having more severe pain. So I just spoke to Dr Ismail and she suggested we increase the dosage of the tablets.”[35]
[35]T110, L20-23
54 The plaintiff was asked to expand on his earlier comment that it was a “struggle” to perform the activities at Docklands. He responded by giving the following evidence:
A: “It’s a struggle. In the mornings when I wake up I’m not sure if I’m going to get out of bed or not. It depends on the pain. I struggle being there for long hours.
Q: When you use the word ‘struggle’ what do you mean?---
A: Just even sitting down or standing up. … .”[36]
[36]T111, L22-27
55 The plaintiff also described that his medication never eradicates the pain but such medication will “calm the pain”. However, the plaintiff stressed that even with medication he still experiences some pain.
Radiological studies undertaken by the Plaintiff
56 The plaintiff has undergone the following radiological examinations:
(a)Lumbar spine x‑ray on 21 September 2009. The radiologist concluded:
“Retrolisthesis and disc space narrowing at L5-S1 raising suspicion of underlying disc abnormality.”[37]
[37]See Exhibit C at page 63 Plaintiff’s Court Book (“PCB”)
(b)MRI scan of the lumbar spine undertaken on 29 September 2009. The impression of the radiologist was:
“L5-S1 disc desiccation, moderate disc space flattening, broad based central disc protrusion with thecal sac indentation anteriorly, but no specific focus of nerve root compromise. Mild left sided neuro foraminal stenosis, primarily due to facet arthropathy.”[38]
[38]See Exhibit C at page 64 PCB
(c)MRI scan of the lumbar spine dated 14 January 2010. The radiologist concludes:
“Broad based and slightly more prominent left posterior lateral disc bulge at L5-S1 which just contacts and potentially irritates the existing left S1 nerve root.”[39]
[39]See Exhibit C at page 65 PCB
(d)Bone scan of the lumbar spine dated 14 January 2010. The radiologist concludes:
“No scan evidence of active bone or joint pathology. No evidence of active face joint disease at this time.”[40]
[40]See Exhibit C at page 66 PCB
(e)CT scan lumbar spine dated 3 September 2010 (post one day artificial disc insertion). The report of the scan states:
“Targeted CT demonstrates L4/5 artificial disc in situ with metallic end plate device inferiorly at L5 and superiorly at S1. There is normal alignment. No fracture. The prosthesis is centrally placed. No canal stenosis or foraminal stenosis. No collection appreciable.”[41]
(f)MRI scan of the lumbar spine dated 22 December 2011. The radiologist concludes:
“Previous L5/S1 artificial disc.
No canal for foraminal stenosis.”[42]
[41]See Exhibit C at page 69 PCB
[42]See Exhibit C at page 71 PCB
The medical evidence relied on by the Plaintiff
57 Dr Donald Fraser was the treating general practitioner of the plaintiff until early 2012. His reports dated 14 December 2010, 16 May 2011, 3 August 2011, 22 February 2012, 22 March 2012 and 25 January 2013 were tendered.[43]
[43]See Exhibit C generally
58 The defendant required Dr Fraser for cross-examination and he gave evidence that he had been a general practitioner for over twenty five years and carried on practice in Hoppers Crossing, Victoria.
59 By way of his reports, Dr Fraser confirms that the plaintiff experienced low-back pain after lifting a concrete block at work on 8 August 2009. Although he underwent physiotherapy, exercises and was prescribed analgesia, his back pain deteriorated and was aggravated by sitting and bending.
60 Dr Fraser diagnosed the plaintiff to be suffering chronic discogenic low-back pain and sciatica and referred him to Mr Brendon O’Brien, who performed an L5-S1 artificial disc insertion on 2 December 2010 at St Vincent’s Private Hospital.
61 In his report dated 16 May 2011, Dr Fraser confirms the diagnosis of chronic discogenic low-back pain with sciatica following the lifting of a concrete block at work on 8 August 2009. Dr Fraser considered the plaintiff was unable to perform his pre-injury duties which involved heavy lifting and bending but was capable at that stage of part-time clerical work and had given him modified duties WorkCover certificates to this effect. At that stage, the plaintiff was undergoing physiotherapy three times a week and required analgesics to control his pain.
62 In his report dated 22 February 2012, Dr Fraser notes that the plaintiff had a new injury at T10-11 which he intended to treat with physiotherapy and Pilates prior to a further MRI scan review. Curiously, given the evidence of the plaintiff that he was not working at that time, Dr Fraser does note that the plaintiff was unfit for his pre-injury duties but “is performing modified duties of light clerical work”.[44]
[44]See Exhibit D at page 83 PCB
63 In his report dated 22 March 2012, Dr Fraser notes that the plaintiff is fit for light clerical work and in his report dated 25 January 2013, Dr Fraser notes that he last saw the plaintiff on 13 March 2012. At that time, Dr Fraser records that he informed the plaintiff that he was “fit for light clerical work” and further notes the plaintiff “insisted that he wasn’t and had an opinion from my psychologist that he shouldn’t work”. Dr Fraser notes that he has not seen the plaintiff since that date.
64 Under cross-examination, Dr Fraser was referred to his report dated 22 February 2012 wherein he comments that the plaintiff was performing “modified duties of light clerical work”. When queried that the report would suggest that the plaintiff was working at that time, Dr Fraser noted that he cannot recall but he would “presume so”. He also accepted it was more likely than not the plaintiff was performing modified light duties for him to record it.
65 Dr Fraser accepted that he had been giving the plaintiff certificates from early 2012 certifying him fit to perform light clerical work with a maximum weight to be lifted of 5 kilograms and to work 5 hours a day for three days a week. Furthermore, Dr Fraser confirmed that he gave such certificates of a similar nature up to the last time that he examined the plaintiff in March 2012.
66 In particular, the following evidence was given:
Q:“What factors did you take into account in formulating that assessment for the certificate of capacity?---
A:His level of pain and his level of mobility.
Q:Did you examine him for mobility?---
A:Yes.
Q:Can you recall what examinations you performed?---
A:He was sitting quite easily.”
HIS HONOUR:
Q:“His sitting, sorry?---
A:Yes.”
MR LOFTUS:
Q:“He was sitting quite easily?---
A:He was able to sit.
Q:Other mobility? Did you perform any other examinations
about - - -?---
A:Like straight leg raising et cetera?
Q:Yes?---
A:I can’t recall, but they would have been done from time to time, any change.
Q:About his level of pain did he describe to you what it was?---
A:Moderately severe.
Q:Did he describe to you where the pain was?---
A:In his lower back.
Q:At the time of your last report on - - -?---
A:Can I just add he also described pain in his neck as well.
Q:Pain in his neck?---
A:As well as lower back.
Q:Whereabouts in the neck?---
A:I don’t know exactly, but in his neck.
Q:When you last saw him in 2012 did you expect that he would improve from there?---
A:I was expecting him to improve, yes.”[45]
[45]T63, L29 – T64, L20
67 When queried as to why he would have expected the plaintiff to improve, Dr Fraser commented, he could not be certain but “I couldn’t see a reason why he wouldn’t be continuing to improve”.[46]
[46]T65, L7–8
68 Dr Fraser also gave evidence that he was not satisfied that the symptoms that the plaintiff was experiencing were all organically based – and in particular, could not quantify what symptoms were organic.
69 Dr Fraser was shown the video film and he accepted that the plaintiff demonstrated standing for several minutes, walking unimpeded, pulling a wheelie bin with his right hand, sitting at a PC desk for up to 14 minutes, capable of bending into his vehicle to retrieve something from his car, able to get into his car unimpeded, and on one occasion was able to get out of his chair very quickly. In particular, the following evidence was given:
Q: “In any of those occasions of sitting, standing, walking outside or near his workplace or at his vehicle in the service station did he show any signs of restriction at all?---
A: No.
Q: Did he show any signs that he was in pain?---
A: No.”[47]
[47]T68, L21-25
70 Dr Fraser gave evidence that although he discussed with the plaintiff that there was a possibility that he might have to have further surgery either at the level where the disc was replaced or at another level, he confirmed that there were no indicators when he last examined him that such surgery was necessary.
71 Dr Fraser was queried in relation to what work the plaintiff could do, and, although stressing he had not seen the plaintiff for some time, the following evidence was given:
HIS HONOUR:
Q:“Doctor, I am not trying to get in your way, sir, but what is your view about this man’s capacity to do clerical work?---
A:I think he is good for clerical work.
Q:Do you think he could get to full‑time work or you just cannot say at this stage?---
A:I can’t say. At the time I was last treating him he was fit for clerical work in my opinion. I can’t really say for today.”[48]
[48]T78, L7–13
72 Under re‑examination, Dr Fraser stated that when he last saw the plaintiff he said he was capable of sitting in various positions, probably up to 15 or 20 minutes. Furthermore, he gave evidence that as at March 2012, which is approximately seventeen months post-surgery, he considered that there would be still improvement in his condition from that date.
73 When queried about the extent of organic symptoms, Dr Fraser confirmed that his certificates restricting the plaintiff to 5 hours a day, three days a week, were in relation to his back injury. Dr Fraser also gave evidence that there is approximately a 5 per cent risk of people who have undergone the type of surgery undertaken by the plaintiff having to have a further operation. If that did occur, such surgery would have an effect on his capacity for employment. On being informed that the dosage of Tramadol had recently been increased from 100 to 150 milligrams, Dr Fraser said this means that he is requiring a higher dose of Tramadol to manage his pain, and that it “sounds like his pain would have deteriorated”.
74 Mr Brendan O’Brien was the treating neurosurgeon of the plaintiff. His reports dated 22 July 2011 and 6 May 2013 and a questionnaire dated 21 December 2011 were tendered.[49]
[49]See Exhibit D at page 3d DCB
75 The defendant required Mr O’Brien for cross-examination. He gave evidence that he is a legally qualified medical practitioner and practises as a neurosurgeon at St Vincent’s Public and Private Hospital in Fitzroy. He also holds an appointment at the Epworth Hospital. He was referred to his various reports, and he accepted the contents to be true and correct. Furthermore, he identified the questionnaire.
76 In particular, he gave this evidence in relation to the questionnaire:
Q:“Could you tell his Honour what it is?---
A:This is a questionnaire that’s asking whether I thought it was appropriate that the patient be involved in suitable alternative employments.
Q:And have you responded to that?---
A:Yes, I’ve responded affirmatively in the four cases provided.”[50]
[50]T118, L28–T117[sic], L2
77 Mr O’Brien also gave evidence that he had watched the video films.
78 In his reports, Mr O’Brien records that he initially consulted with the plaintiff on 6 November 2009, at which time the plaintiff was complaining of low-back pain which occurred after lifting a concrete block at work on 8 August 2009. At the initial consultation, the plaintiff described significant low-back pain which was aggravated by sitting and bending. Although there initially was no radiation to the legs, this gradually occurred down the left leg.
79 After reviewing MRI scans of the low back, and assessing the clinical presentation of the plaintiff, which was deteriorating, Mr O’Brien performed an anterior lumbar discectomy and artificial disc insertion on 2 September 2010.
80 In his report dated 22 July 2011, Mr O’Brien notes that he did not believe the plaintiff would require any further surgery, and that he had a capacity for work, although he recommended such work not to involve recurrent bending, lifting, twisting or straining. He also noted that injury to the lumbar disc has impacted on this patient’s “social and domestic abilities”.
81 In his report dated 6 May 2013, Mr O’Brien notes that in the post-operative period the plaintiff continued to do well. In particular, Mr O’Brien states:
“I saw him again on 15 March 2011 and the review has been ongoing since then.
He has last been seen on 4 December 2012. He described his lower lumbar area is feeling good. He noted intermittent pain through his left buttock. There is also some pain in the thoracic region and his general practitioner told him there were two thoracic disc protrusions.
Otherwise, clinical examination demonstrated no evidence of any problems in the lower lumbar region. Plain films of the lumbar spine demonstrate good positioning of the underlying artificial disc at L5/S1.
This patient has incurred an injury to the L5/S1 disc which has been treated initially with multimodality conservative management. Despite this, he had demonstrable ongoing disc protrusion with impingement of the left S1 nerve root. He has undergone a successful artificial disc insertion of 2 September 2010. Since then he has had some symptoms in the lower lumbar region which has been managed with intermittent oral analgesia and a careful self-managed rehabilitation program.
I believe the prognosis for Mr Pistone is good and I believe that he can be involved in employment both currently and in the future. I do not believe he should be required to do any lifting of objects heavier than 10 kilograms.
To work as a site manager would be appropriate currently as long as he adhered to the lifting restrictions in this regard.”
82 Mr O’Brien was required to complete a questionnaire as to whether or not the plaintiff is capable of undertaking duties of the positions identified in a vocational assessment report. Such duties were: account manager/sales and marketing manager; supply and distribution manager; facilities manager; and insurance consultant. Mr O’Brien, consistent with his evidence-in-chief, considered that the plaintiff was capable of undertaking all such duties.
83 Under cross-examination Mr O’Brien was queried about what he meant in stating that the prognosis of the plaintiff was “good”. Mr O’Brien stated:
“I think that the statement that his prognosis is good is – it does have a whole range of qualifying features associated with it. From a surgeon’s perspective, the statement that his prognosis is good is very much related to the procedure that’s performed, the imaging studies in the post-operative period and how the person is continuing in their day-to-day activities and life and whatnot. Going forward, the prognosis can be split into several different aspects. It can be split into a prognosis for the artificial disc or it can be split into a prognosis for the individual patient and their wellbeing and lifestyle and work abilities in the future.”[51]
[51]T119, L7–20
84 Mr O’Brien indicated that all the recent x‑rays showed that the artificial disc was stable, although he noted that the x‑ray last year showed no clear-cut evidence of movement of the artificial disc. He commented that not to see movement on the x‑ray may have been just related to pain that the patient was in at that time, rather than any difficulty.
85 When queried about whether the only restriction pertained to “lifting”, Mr O’Brien stated:
“Yes, the other aspects of restriction are the avoidance of any abnormal biomechanical forces through the spine that would place the lower lumbar spine at increased risk of strain and specifically, these ones are pushing or pulling weights of greater than, for instance, 10 kilos, sudden movements and repeated bending, twisting or bending particularly in combination where the spine is unloaded, less protected by the core muscles. So these activities are part of a general recommendation and prudent advice approach in protection of the spine.”[52]
[52]T121, L28–T122, L7
86 When last seen in December 2012, Mr O’Brien was of the opinion that the plaintiff had the capacity to do the activities described in the questionnaire and in general had the capacity to perform sedentary office-type duties.
87 When queried about whether such work should be full-time or part-time work, Mr O’Brien commented that initially he was speaking about the actual appropriateness of such work, and thereafter such work would be done on a supervised basis under a supervised program.
88 Mr O’Brien confirmed that he viewed the video film and that there was nothing in such film to suggest that the plaintiff had deteriorated since he last saw him. Furthermore, Mr O’Brien was of the view that there was no evidence to show that the plaintiff was in pain or indeed had any restriction in movement.
89 Furthermore, having viewed the film and taking into account his last examination, he was of the opinion that the plaintiff could work 20 hours per week on a consistent basis and “potentially” had the capacity to increase those hours. Mr O’Brien was also of the opinion that the restrictions would have had an impact on the plaintiff’s day-to-day activities and recreational activities and stated that “he would be understandably limited in the degree of participation of active sports”.[53] Mr O’Brien, when queried, expressed the view that there was evidence, during the period of his treatment, of the plaintiff having a depressive affect, and that has its ramifications in:
“[D]ecreased initiative, lowered social contacts, less spontaneity to be with others and a change in his personality as this chronic disability has borne itself out.”[54]
[53]T125, L12–13
[54]T126, L1–4
90 Mr O’Brien accepted, having seen the plaintiff late last year and the video film, that the plaintiff was capable of coping with light clerical duties which involved sitting for extended periods, working a computer, answering the telephone, and in general all of the light clerical duties that you would expect in an office-based role.
91 Mr O’Brien gave evidence that he has performed this type of surgery for the last ten years and that there were no artificial discs that he had to take out or replace. However, Mr O’Brien stressed that the functionality of an artificial disc is not that it wears out or moves or dislodges, but rather it just “freezes up” and stops moving. When queried by the Court as to his opinion in relation to his earlier comments as to the lack of the movement of the disc as shown on recent plain x‑rays, Mr O’Brien stated:
A:“... at this point I have not come to a definite view as to whether it was perhaps pain inhibition on that day, and that was something that on further assessment down the track, that we’ll continue to monitor those x‑rays and look at it and see how the joint or the artificial disc is functioning
Q:When those x‑rays are taken is there any subjective involvement as to how the patient moves?---
A:There is by a radiographer. It’s witnessed by a radiographer, but I must say that it’s not actually described in the report. So the radiologist who performs the films probably has not been staying there as the patient has been x‑rayed.
Q:Yes?---
A:And it is a very good point, that I think that should be added to the description of the amount of effort that was placed into the movement at the time.”[55]
[55]T132, L14–28
92 Under re‑examination, Mr O’Brien accepted that the nature of the surgery undertaken by the plaintiff will put strain on either side of the area where the disc was inserted, which could lead to increased localised pain or the potential of increased degeneration at those levels. Furthermore, Mr O’Brien expanded on his comments that the plaintiff should not be exposed to any abnormal biomechanical forces because the spine biomechanics have been changed with the insertion of an artificial disc which in turn will give rise to a slightly different centre of rotation.
93 Mr O’Brien also accepted that it would be “relevant” if the plaintiff was taking Tramadol on the occasions when the video film was taken.
94 The plaintiff also relies on a medical report from his present treating doctor, Dr Ailina Ismail, dated 28 July 2013.[56] In that report, Dr Ismail describes the plaintiff having a “longstanding work-related complex spinal injury”. Furthermore, Dr Ismail states:
“Based on recent reviews, Mr Pistone is fit for light clerical work. He was last seen by a surgeon in February who suggested a continuation of physiotherapy, Pilates and medications (Celebrex, Somac). His long-term prognosis is unknown as his back condition may improve with time.”[57]
[56]See Exhibit D at page 94 PCB
[57]See Exhibit D at page 94 PCB
95 The plaintiff also relies on a report from the physiotherapist, Mr David Philipps, dated 19 January 2011.[58] Mr Philipps commenced treating the plaintiff on 10 August 2009 (two days after the injury) when the plaintiff complained of an acute onset of low-back pain after lifting a concrete block at work. A perusal of the report would suggest that the plaintiff attended for physiotherapy on a significant number of occasions leading up to his surgery on 2 September 2010.
[58]See Exhibit D at page 74 PCB
96 Mr Philipps notes that the plaintiff resumed physiotherapy treatment on 8 November 2010 and was later seen on 6 December 2010. As at that date, Mr Philipps notes that the plaintiff continued to experience significant pain and musculoskeletal loss of movement and strength through his lumbar spine which continues to affect his ability to perform the basic activities of daily living.
97 The plaintiff also relies on a report from the psychologist, Mr Alan Williams, dated 12 March 2012.[59] Mr Williams records that he initially consulted with the plaintiff on 1 March 2012 and notes that the main reason that the plaintiff requested psychological help was due to the fact he had been feeling very depressed for quite some time and was having difficulty sleeping because of the chronic pain. In particular, the plaintiff described that he feels that the injury has deprived him of many of the things in his life that he really loved, and in particular, his passion for sports and that for his family.
[59]See Exhibit D at page 86 PCB
98 Mr Williams proffered a differential diagnosis of “severe depression”. In particular, Mr Williams states:
“From a psychological viewpoint, it would be valuable for his self-esteem to return to work; however, due to his currently limited abilities, he would be likely to fail and further increase his feelings of helplessness and hopelessness. It is difficult to assess what sort of work, if any, would be suitable at this time. The length of time before he could return to work is also unknown at this time.”[60]
[60]See Exhibit D at page 88 PCB
Medico-legal reports relied on by the Plaintiff
99 The plaintiff relies on the following medico-legal examinations:
(a)By the orthopaedic surgeon, Mr J O’Brian, on 27 September 2011.[61] Mr O’Brien also supplied a supplementary report dated 1 December 2011.[62]
(b)By the neurosurgeon, Mr P D Dohrmann, who examined the plaintiff on 15 February 2013.[63]
(c)The occupational physician, Dr David Middleton, on 18 June 2012[64] and on 22 April 2013.[65]
[61]See report dated 3 October 2011, Exhibit E, at page 126 PCB
[62]See Exhibit D at page 131 PCB
[63]See report of same date, Exhibit D, at page 152 PCB
[64]See report dated 4 July 2012, Exhibit E, at page 132 PCB
[65]See report dated 14 June 2013, Exhibit E, at page 162 PCB
100 When seen on 27 September 2011, Mr John O’Brien notes that the disc replacement at L5‑S1 was reported as resolving leg pain; however, the plaintiff informed him that he continued to experience constant back pain at the lumbosacral junction, and in more recent times quite severe pain in the lower thoracic spine. Mr O’Brien notes that it is now “difficult to explain” the pain generated responsible for the severity of ongoing back pain, given that the disc has been removed and the relief of the leg pain. He considered that that pain should be best described as “post-surgical back pain”. He noted that the plaintiff also described thoracic pain, which he did not consider was significant. Mr O’Brien noted that the plaintiff described significant disability, and on the basis of his presentation, Mr O’Brien believed he would not be capable of a return to pre-injury occupation, and from a physical perspective was of the opinion that he was then totally incapacitated.
101 When examined by Mr Dohrmann, the plaintiff described “constant central low-back pain with intermittent radiation to the left buttock”. In particular, the plaintiff rated the pain as being typically 8 out of 10, but can reduce to 6 out of 10 and can increase to 10 out of 10. According to the plaintiff, he does not experience any “good days”. Mr Dohrmann also obtained a history of thoracic pain which began gradually in 2011 for which there was no obvious injury or incident to account for it. Mr Dohrmann notes that such pain is perceived as being clearly separate from the low-back pain.
102 Mr Dohrmann obtained a history that the plaintiff can attend to basic self-care but only “slowly”; can do some light housework; cannot stand and lean into a sink, and is unable to remove washing from a washing machine. Furthermore, the plaintiff gave a history that he can drive, but only on local trips (for example to drop his daughter off at a kindergarten), and, although he can go shopping, he can only perform the lightest of duties, and he notes that even lifting a 2-litre milk container causes a feeling of increase of pressure in the low back. The plaintiff also gave a history that he has abandoned competitive tennis, golf, competitive soccer, fishing and camping.
103 Mr Dohrmann obtained the history that since October 2012, the plaintiff has been performing voluntary clerical work for a friend, and was working up to 15 hours a week, but finding it difficult to do so.
104 Mr Dohrmann was of the opinion that the plaintiff had suffered injury of the lumbosacral disc in the course of his employment with the defendant on 8 August 2009. His diagnosis was that of chronic low-back pain in association with a disc lesion at L5‑S1, surgically treated without evidence of radiculopathy. In particular, Mr Dohrmann stated:
“Mr Pistone will be indefinitely precluded or restricted from employment which involves repeated bending, lifting or twisting motions of the spine. He will also be restricted from any activities involving pushing, pulling, lifting and prolonged sitting, walking or standing.”[66]
[66]See Exhibit E at page 157 PCB
105 Mr Dohrmann was of the opinion that the plaintiff does have a partial capacity for work in the order of 2 hours per day, four or five days per week, in anticipation “that this may be gradually increased in the future”.[67]
[67]See Exhibit E at page 158 PCB
106 When initially seen on 18 June 2012, Dr Middleton formed the opinion that the plaintiff suffered a disc protrusion at L5‑S1 with impingement evolving to irritate the left S1 nerve root as a result of lifting a concrete block during the course of his employment with the defendant on 8 August 2009. He also considered that his changed gait resulting from his lumbar spine injury aggravated degenerative disease is the thoracic area of the spine. Furthermore, he was of the opinion that the plaintiff had developed a Chronic Adjustment Disorder with marked Depression and Anxiety.
107 In relation to any employment, Dr Middleton was of the opinion that the plaintiff should avoid repetitive bending, lifting, twisting, stooping or forceful pushing, pulling, and prolonged postures involving the lumbar spine. In particular, he considered that the plaintiff only had the capacity of possibly performing non-manual-based work on a part-time basis. He also noted that the plaintiff’s residual physical capacity is unreliable, and it may change from day to day. He considered that attendance at work would vary between 2 and 4 hours in any one day, two to four days in any one week, with a maximum work attendance of 12 hours in any week.
108 When seen on 22 April 2013, Dr Middleton obtained a history from the plaintiff that he had been performing voluntary clerical work at Docklands, managing “serviced apartments”. The plaintiff noted that his hours varied from 2 to 4 hours on any one day, two to three days in any one week, with total hours’ work in a week ranging from nought to 12 hours on a voluntary basis.
109 At that time, the plaintiff complained of pain in the low back and lumbar spine, extending upwards to the lower thoracic spinal area. Such pain was a constant aching pain which varies in severity, greater on getting up in the morning and late in the evenings. Dr Middleton noted that the plaintiff found himself focused on the injury every day, resulting in him becoming moody, upset and even angry.
110 After making a physical examination and reviewing the various medical reports and radiological material, Dr Middleton confirmed his earlier diagnosis and in particular, noted the plaintiff was suffering from a Chronic Adjustment Disorder with ongoing mild Depression and significant Anxiety, directly as a result of his failure to recover from his serious low-back injury.
111 In relation to his low-back injury, Dr Middleton was of the opinion that the plaintiff did not have any capacity to perform his previous duties either on a full or part-time basis, and such incapacity is permanent.
112 In particular, Dr Middleton also states:
“To the total exclusion of any psychological or psychiatric condition, addressing exclusively the physical injury impairment of Mr Pistone’s back, taking into consideration his severe incapacity, noting the restrictions stated above, his age of 37 would not impede his capacity, the fact he has completed VCE but has no other recognised qualifications or educational certificates, his place of residence in Altona, which has limited public transport, noting his work experience, including the fact that he has not worked for nearly four years and his transferable skills, it is my opinion that Mr Pistone could only consider the possibility of working in a non-manually-based job on a part-time basis.”[68]
[68]See Exhibit E at page 183 PCB
113 Dr Middleton was of the opinion that the plaintiff would be an unreliable work attendee, and in all the circumstances he could attend work from anything from nought to 4 hours in any one day, two to four days in any one week, with a maximum work attendance of no more than 16 hours in any one week.
114 He was also of the opinion that, noting that the plaintiff was a highly active sportsman prior to his injury, such injury has impacted on his capacity to involve himself in sport and also in his domestic and outdoor activities, particularly his family life.
Medico-legal reports relied on by the Defendant
115 It is convenient to refer to the medico-legal reports relied on by the defendant. The solicitor for the defendant (or its agent) arranged for the plaintiff to be medico-legally examined by the following doctors:
(a)The occupational physician, Dr John Lange, on 2 December 2009.[69] Dr Lang also made a work site assessment on 16 December 2009 and reported on such assessment on 22 December 2009.
(b)The forensic psychiatrist, Dr Alan Jager, in or about October 2011.[70]
(c)The specialist occupational physician, Dr Dominic Yong, on 10 April 2013.[71]
[69]See report of same date, Exhibit 3, at page 8 DCB
[70]See undated report, Exhibit 3, at page 14 DCB
[71]See report of same date Exhibit 3 at page 20 DCB
116 After his examination, Dr Lange was satisfied the plaintiff had suffered an L5‑S1 disc prolapse as a result of moving a concrete block during the course of his employment in 2009. Considering that Dr Lange examined the plaintiff prior to his disc replacement on 2 December 2010, and the issues to be resolved in this matter, I do not consider his opinion in relation to capacity for employment particularly helpful.
117 After his examination, Dr Jager was of the opinion that the plaintiff suffered from an Adjustment Disorder with Depressed Mood which was a secondary consequence of his back injury. At that time, Dr Jager was the opinion that the plaintiff could return to work on alternative duties and was of the view that he was fit for work 6 hours a day, five days a week within his physical restrictions.
118 When examined by Dr Yong, the plaintiff gave a history that post-surgery, his left leg symptoms improved significantly. At the time of examination, he complained that his physical symptoms included pain in his low back which is worse at night time and in the morning. Such pain sometimes radiates up the spine.
119 The plaintiff informed Dr Yong that he is currently performing voluntary office space duties for up to 10 hours per week and was currently looking for employment. Dr Yong was of the opinion that the plaintiff had suffered an L5‑S1 disc injury which was treated surgically in September 2010. He does note that the plaintiff’s ongoing condition is “complicated by a psychological co-morbidity requiring treatment from a psychiatrist”. In particular, he found the presence of Waddell’s signs suggesting magnification of the symptoms which he thought could be related to the psychological co-morbidity.
120 Dr Yong was of the opinion that, taking into account only the physical condition and ignoring any psychological issues and further, the underlying diagnosis, current functional capacity and current requirement to participate in an activity-based recovery program, the plaintiff has a current capacity for work. However, he was of the opinion that any such work should avoid repeated bending and twisting the back, firm pushing or pulling and lifting more than 3 kilograms on a repeated basis. Furthermore, he should be able to vary posture regularly between sitting, standing and walking and there be a reduction in working hours. In particular, Dr Yong stated:
“I would anticipate that the role of a car park attendant would comply with the restrictions. However Mr Pistone does not have a current capacity to perform this for his pre-injury hours on a full time basis.
He does however have a current capacity to participate in a graduated return to work program. He could commence working 10 hours per week in this role. He can then progressively increase this to full time basis over a four to six month period.”[72]
[72]See Exhibit 3 at page 27 DCB
121 Furthermore, Dr Yong was of the opinion that the plaintiff could work as an insurance consultant, insurance agent, account clerk, accounts manager/sales, marketing manager, supply and distribution manager and facilities manager on the basis that such roles are office-based and the absence of significant manual handling.
122 The defendant also relies on the report of the psychiatrist, Dr David Weissman, who examined the plaintiff on 17 July 2013 at the request of the solicitors for the plaintiff.[73] After obtaining a history and making a mental state examination, he was of the opinion that the plaintiff was suffering from mild to moderate (but closer to moderate) mixed reactive depression and anxiety symptoms, themes and features as a consequence of his low-back injury. The formal diagnosis was a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity. On purely psychiatric grounds alone, Dr Weissman was of the opinion that it was probable that the plaintiff suffers no psychiatric incapacity for work.
[73]See Exhibit 6 at page 186 PCB
Other material relied on by Plaintiff
123 The plaintiff relies on the following reports:
(a)a vocational assessment report prepared by Ms Katrine Green, who assessed the plaintiff on 31 July 2013.[74] Ms Green also supplied a short supplementary report dated 7 August 2013[75]
(b)two reports from Ms Annette Webster of Flexi Personnel Pty Ltd, both dated 7 August 2013[76]
[74]See Exhibit F at page 107 PCB
[75]See Exhibit F at page 125a PCB
[76]See Exhibit F at page 19a PCB
124 After reviewing most of the medical material, and obtaining an education and vocational history from the plaintiff, Ms Green opined that the plaintiff would have transferrable skills and occupational history to perform the work of an importer/exporter or wholesale coordination manager; customer service manager; purchasing supply logistics clerk; logistics and delivery clerk; sales clerk; clerical and office support worker; call centre information clerk and enquiry information clerk.
125 However, after analysis of each of these occupations and bearing in mind the medical opinions made available to Ms Green, she states, in part:
“… the analysis of the above occupations, and the physical demands of the core duties, it is concluded that Mr Claudio Pistone does have a current physical capacity to perform the inherent duties of the physical occupations importer, exporter and wholesale coordinator/manager, customer service manager and clerical and office support worker. From a physical perspective due to his back injury it is considered that Mr Pistone could undertake these occupations twelve to fifteen hours per week over five days … .”[77]
In her report dated 7 August 2013, Ms Green supplied the various ANZSCO codes for the occupations provided in her vocational assessment report.
[77]See Exhibit F at page 125 PCB
126 In her reports dated 7 August 2013, Ms Webster sets out various pay rates for a number of occupations, such pay rates being for a 38-hour week, not including overtime or any paid allowances or making provision for superannuation.
Further material relied on by the Defendant
127 The defendant relies on the following material:
(a)return to work plans dated 13 November 2009, 29 January 2010 and 14 April 2012;[78]
(b)130-week vocational assessment report dated 9 December 2011;[79]
(c)NES vocational assessment dated 3 May 2011;[80]
(d)NES job seeker plan dated 30 September 2011; NES job seeker plan dated 11 November 2011; NES week 16 job offer plan dated 13 January 2012 and NES worker plan dated 16 April 2012;[81]
(f)Labour market analysis report dated 18 June 2013;[82]
[78]See Exhibit 4 at pages 109-114 DCB
[79]See Exhibit 5 at pages 138-144 DCB
[80]See Exhibit 5 at page 130 DCB
[81]See Exhibit 5 at pages 122-137 and pp 145-152 DCB
[82]See Exhibit 5 at pages 153-163 DCB
128 Exhibit 4, consisting of various offers of suitable employment all pre-date the surgery undertaken by the plaintiff on 2 December 2010 and, in my view, are of little assistance in determining the issues in this proceeding. In any event, I accept that prior to his surgery, the plaintiff had very little if any capacity for employment, given the pain and in particular the left leg pain suffered by him as a result of his disc lesion at L5-S1.
129 The 130-week vocational assessment report completed on 9 December 2011 identified the following jobs to be suitable employment for the plaintiff:
(a)account manager/sales and marketing manager (ANZSCO Code: 1311‑12);
(b)supply and distribution manager (ANZSCO Code: 1336-11);
(c)facilities manager (ANZSCO Code: 1499-13);
(d)insurance consultant (ANZSCO Code: 5523-12).
These jobs were those identified to Mr Bernard O’Brien, the treating neurosurgeon, who, in the questionnaire dated 21 December 2011, considered that the plaintiff capable of performing such work.
130 I note that the various NES job seeker plans list the suitable employment option goals to be insurance consultant (ANZSCO Code: 5523-12); insurance investigator (ANZSCO Code: 599-11); insurance agent (ANZSCO Code: 6112-11) and account clerk (ANZSCO Code: 5511-11). According to such plans, these jobs were identified in the vocational assessment dated 10 May 2011.[83]
[83]See Exhibit 5 at page 122 DCB
131 In the labour market analysis report dated 18 June 2013[84] there is set out the job availability, remuneration and physical requirements of a sales and marketing manager/account manager (ANZSCO Code: 1311); supply and distribution manager (ANZSCO Code: 1336); insurance consultant (ANZSCO Code: 55523); insurance investigator (ANZSCO Code: 5996); insurance agent (ANZSCO Code: 6112) and account clerk (ANZSCO Code 5511).
[84]See Exhibit 5 at page 153 DCB
Analysis of the evidence
132 I find that the plaintiff suffered a low-back injury arising out of or in the course of his employment with the defendant on or about 8 August 2009. Furthermore, I find that such compensable injury has resulted in some permanent impairment of his low back giving rise to some organic consequences. So much is not disputed by the defendant.
133 The defendant submits that after a consideration of all the evidence, the plaintiff has failed to discharge his onus in satisfying the narrative test.
134 Counsel for the defendant submitted that the credit of the plaintiff was impugned. In particular, he referred to the following matters:
(a)The video film shown to the Court was inconsistent with the evidence given by the plaintiff that his “pain was severe almost every day now”;[85]
(b)Again, the video film which revealed him getting in and out of cars and standing pumping petrol into his car, was said to be without restriction and inconsistent with his evidence that he has “driven longer than Geelong but every time I do long distance driving where my pain is severe, I stop on the side of the road and stretch;”[86]
(c)Bearing in mind the evidence of Dr Fraser that his perception of the video film showed the plaintiff getting into his car unimpeded, sitting and getting out his chair quickly, and displaying no signs of restriction or pain, such activities were inconsistent with the plaintiff’s evidence when he stated “it is a struggle to be there at ACD Apartments”;[87]
(d)In relation to medication, the plaintiff deposed in his affidavit sworn 10 July 2013, that I still need to take it on several occasions per month. He was referring to Tramadol, Celebrex and Somac. Counsel for the defendant compared such evidence to his viva voce evidence given on 12 August that he takes medication “every day this year”.[88] Counsel for the defendant also notes that there is no credible evidence that the plaintiff has increased his medication and indeed in the report from his current general practitioner, Dr Ismail, there is only reference to Celebrex and Somac and no reference to Tramadol at all;
(e)Counsel for the defendant also refers to the last examination undertaken by the treating neurosurgeon in December 2012 when Mr O’Brien reports that the plaintiff “described his lower lumbar area is feeling good. He noticed some intermittent pain through his left buttock.”[89]
[85]T26, L11-12
[86]T29, L10-13
[87]T34, L28
[88]T26, L 29–30
[89]See Exhibit D at page 93 PCB
135 I had the advantage of observing the plaintiff being cross-examined on two separate days and have come to the view that the plaintiff was attempting to give honest and accurate answers to the questions posed to him. However, I also formed the view that the plaintiff was very much injury-focussed.
136 For completeness, I perhaps should add (although no submission was made in relation to this issue by the defendant) that I do find that the plaintiff does not hold a Diploma of Aviation as stated in his LinkedIn document. In this respect, I accept his sworn evidence that he has never undertaken such a course.
137 I also note the affidavit of Adriana Sartor, the sister of the plaintiff, sworn on 26 August 2013[90] and the letter from RMIT to the solicitors of the plaintiff dated 28 August 2013[91] which support such finding. The reference to the Diploma of Aviation made its way into various reports which I accept came about by the doctors having the LinkedIn document rather than the plaintiff asserting such a qualification in his histories to those doctors.
[90]See Exhibit A page 42a PCB
[91]See Exhibit H
138 Counsel for the defendant also submitted that an issue arises as to whether the alleged consequences have an organic nature or indeed are psychologically mediated. Of course, it is for the plaintiff to satisfy the Court that the organic consequences of his low-back impairment satisfy the narrative test and the extent to which his organic consequences impact on his capacity for employment. I do refer to the following matters:
(a) The evidence of Dr Fraser that when he last saw the plaintiff in March 2012, he was not satisfied that all the symptoms complained of by the plaintiff were organically based and in particular, could not quantify what symptoms were organically based. In this respect, it is also to be noted that Dr Fraser, at his last consultation with the plaintiff, considered that the plaintiff was “fit for light clerical work” but the plaintiff “insisted that he wasn’t and had an opinion my psychologist that he shouldn’t work”. However, I do note that Dr Fraser accepted that when he gave certificates certifying him fit for work 5 hours a day, three days a week, that was in relation to his back condition.
(b)The treating neurosurgeon, Mr Bernard O’Brien, was an extremely impressive witness, both in relation to his expertise and indeed his willingness to make reasonable concessions throughout the course of his evidence. He gave evidence that during the course of his treatment of the plaintiff, the plaintiff had a “depressive affect”. In particular, he considered the ramifications of such depressive affect to be:
“Decreased initiative, lowered social contact, less spontaneity to be with others and a change in his personality as his chronic disability has borne itself out.”[92]
(c)The treating psychologist, Mr Williams, commenced treating the plaintiff in March 2012 and seemingly continued treatment until mid-2012 when funding issues arose. In his report, Mr Williams proffered a differential diagnosis of “severe depression”. I also note that the psychiatrist, Dr Jager, who examined the plaintiff in or about October 2011, was of the opinion that the plaintiff suffered from an Adjustment Disorder with Depressed Mood as a secondary consequence of his back injury. Furthermore, the psychiatrist, Dr David Weissman, who examined the plaintiff on 17 July 2013 (at the request of the plaintiff’s solicitors), formed the view that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity (although Dr Weissman was of the opinion that it was probable the plaintiff suffered no psychiatric incapacity for work).
(d)The occupational physician, Dr Yong, who examined the plaintiff on 10 April 2013 considered that his ongoing condition was “complicated by a psychological co-morbidity requiring treatment from a psychiatrist”. He also found the presence of Waddell’s signs, suggesting magnification of the symptoms.
[92]T126, L1–4
139 I have already noted that I found the plaintiff to be injury-focussed. I tend to the view that there was a psychological element in the presentation of the plaintiff and, in general terms, accept the view of his treating neurosurgeon that the plaintiff presents with a depressive affect which plays some role, at least, in decreasing his initiative and spontaneity.
140 However, I consider that it must borne steadily in mind that the plaintiff has had an artificial disc inserted into his lower spine. I refer to the evidence of the treating neurosurgeon, Mr O’Brien, who explained that the plaintiff should avoid any lifting and what he referred to as “any abnormal biomechanical forces through the spine that would place the lower lumbar spine at increased risk of strain and damage to that area”. Furthermore, Mr O’Brien was of the opinion that the nature of such surgery does cause the potential for increased degeneration at levels above and below where the disc was inserted. Mr O’Brien commented that the insertion of such disc would have had an impact on the plaintiff’s day-to-day activities and the recreational activities, and in particular, stated that the plaintiff would be limited in the degree of participation in active sports.
141 After a consideration of all the evidence and particularly the evidence of the treating neurosurgeon, which I accept, I do find that the plaintiff has discharged his onus in satisfying the narrative test. In particular, although I do find that there are psychological elements in the presentation of the plaintiff, I am satisfied that there is a “substantial organic basis”[93] causing the restrictions on the plaintiff’s day-to-day activities and recreational activities that he enjoyed prior to the injury.
[93]See Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 and in particular, at paragraphs [25] – [29]; Meadows v Lichmore Pty Ltd [2013] VSCA 201 and in particular, at paragraphs [20] – [24]
142 In this respect, there was no challenge to the evidence of the plaintiff that prior to his injury, he was actively involved in many sports and had a love of sporting activities, engaged in outdoor-type activities, and enjoyed a full social life. Similarly, there was no challenge to his allegations that he has virtually given up active sports – seemingly on the recommendation that any such activity would have the potential to cause damage to the artificial disc. Nor was there was any challenge to his complaints that he was unable to engage in with his daughter to the extent that he wished, or indeed engage in his other social and recreational activities because of restrictions in his back.
143 All in all, given the age of the plaintiff and bearing in mind that such condition will extend into the foreseeable future, with a risk that the disc will “freeze” and/or give problems to discs on either side of the artificial disc, I am satisfied he has discharged the requirements of the narrative test and is entitled to have leave to bring common law proceedings in respect of pain and suffering damages. I should add, that although I accept that the plaintiff does suffer organic symptoms of pain, I consider that such symptoms have been magnified to some extent by psychological mechanisms.
144 In relation to “pecuniary loss damages”, s134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application, he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by (f), necessitates a comparison of two matters;
(a)what the plaintiff was earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b)the income that the plaintiff was earning or is capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred (“without injury earnings”).
145 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
146 Section 134AB(38)(e)(ii) requires of the plaintiff that he will, after the date of hearing “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
147 Counsel for the plaintiff submits that the appropriate “without injury earnings” should be $56,316, whereas counsel for the defendant submits that the appropriate “without injury earnings” should be $49,644.
148 The plaintiff commenced employment with the defendant in July 2007 and suffered injury on 8 August 2009. I refer to exhibit G,[94] which is a summary of the income taxation returns of the plaintiff. For the financial year ending 30 June 2008, his gross earnings were $56,316 and for the financial year ending 30 June 2009, his gross earnings were $49,644.
[94]page 198 PCB
149 I also refer to exhibit B which includes the Claim Form of the worker dated 16 August 2009.[95] In that document, seemingly signed by the plaintiff on 16 August 2009, it is recorded that the plaintiff was working 46 hours per week at the time of the injury. In particular, he was working from 6.00am to 6.00pm on Mondays, from 9.00am to 5.00pm on Tuesday to Friday, and from 5.00pm to 11.00pm on Saturdays. Such document also records that he was being paid $20 per hour on weekdays and $22.68 on weekends. The sum of $934.74 is recorded as “his usual pre-tax earnings” although such earnings are said to exclude overtime and/or shift allowances. The sum of $934.74 annualised amounts to $48,607.
[95]See Exhibit B at pages 43-44 PCB
150 There is no evidence before me as to what the plaintiff would have earned if he continued in his employment with the defendant after the injury. Furthermore, there is no evidence before me as to why there is a variation in his gross earnings for the two full financial years.
151 After considering the evidence available to me, I consider it is probably relevant to take into account only that period of employment when he commenced with the defendant, as I am prepared to infer from the evidence that absent the injury he would have continued with the defendant. However, the Act directs that his “without injury earnings” be the sum that “most fairly reflects” the plaintiff’s earning capacity had the injury not occurred taking account of the three years before the injury and three years after the injury.[96] Given the material in the Claim Form, which gives rise to a lesser annualised rate than for the year ending 30 June 2009, which suggests the amount for the year ending 30 June 2008 is for one reason or another not a fair reflection of the earning capacity of the plaintiff, I do find that the “without injury earnings” amounts to $49,644. Sixty per cent of that sum is $29,786.40; or alternatively, $572.82 gross per week.
[96]See Hayhill Pty Ltd v Hodge [2006] VSCA 194; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
152 There is no issue between the parties that the plaintiff has a capacity of performing “suitable employment” within the meaning of the Act.[97] I do find that the plaintiff is capable of performing suitable employment – the critical issues are the extent and nature of such suitable employment, and the pay rates for such employment. Counsel for the plaintiff submit that their client is capable of performing suitable work 15 to 20 hours per week, whereas counsel for the defendant submits that the plaintiff is capable of suitable employment for “at least 15 to 20 hours a week”.
[97]See definition of “suitable employment” contained in s5(1) of the Act
153 I make the following comments:
(a)The plaintiff has a good employment history, working from his completion of his VCE in 1994 up to his injury on 8 August 2009. Such employment has largely been sedentary and of a clerical nature. Furthermore, he has been employed in managerial positions involving stock, logistics and accounts;
(b)The plaintiff is computer-literate and has undergone some limited courses in office management;
(c)Even in his present voluntary role, he is required to use computers, communicate with people directly and by electronic means;
(d)From my observations he was articulate and well presented.
154 After a consideration of all the evidence, I have formed the view that the plaintiff has acquired work skills which make him suitable for a range of clerical positions involving managerial roles. Furthermore, I consider that given his experience he should not be viewed as someone who would enter that workforce at “entry level”, but as someone who has the experience and skills to manage accounts, stock and logistics.
155 After a consideration of all the evidence, I consider that the plaintiff is capable of at least performing 20 hours of sedentary clerical work. Consistent with the evidence of most of the doctors, he should avoid work which involves the lifting of any weights, repeated bending or jobs which require him to be seated all the time.
156 I have come to such view for the following reasons:
(a)I accept the evidence of the treating neurosurgeon, Mr O’Brien, when he stated that having viewed the video film and taking into account his last examination, he is of the opinion that the plaintiff could work 20 hours per week on a consistent basis and “potentially” have the capacity to increase those hours. Furthermore, Dr Yong was of the opinion that the plaintiff had a current capacity to perform work and suggested a graduated return to work program commencing at 10 hours per week and increasing to full time over a period of four to six months.
(b)I do consider that the video film does assist in the resolution of these issues. Although appreciating that investigators only obtained a limited amount of film, such film over a number of days does, in my view, show the plaintiff to be able to walk in a normal fashion, sit for periods of time, drive his motor vehicle, perform some partial bending, and get into and out of motorcars without apparent difficulty. I consider that the plaintiff did not show any restriction of movement or any apparent signs of experiencing pain. Furthermore, the treating neurosurgeon and the former treating general practitioner were of a similar view. Although the plaintiff asserted that most probably he was taking Tramadol at the time of the video (and thus the pain was controlled), it must be remembered that the plaintiff asserted that he was in pain at all times, even when taking medication.
(c)I reject the evidence of Mr John O’Brien, who saw the plaintiff on 27 September 2011, nearly two years prior to the hearing date and is of little relevance. Furthermore, I reject the evidence of Mr Dohrmann who examined the plaintiff on 15 February 2013 and whose opinion, I consider, was substantially based on the history of symptoms suffered by the plaintiff. In this respect it is to be noted that the plaintiff informed Mr Dohrmann that he can only perform the lightest of duties and that even lifting a 2‑litre milk container can cause a feeling of increased pressure in the low back. It is to be recalled at that examination date, the plaintiff was performing the activities at Docklands. In this respect, it is to be noted the video film was taken over the period from 6 December 2012 to 19 June 2013 which encompasses the examination date by Mr Dohrmann.
(d)To the extent that the evidence of Dr Middleton is inconsistent with the treating neurosurgeon and Dr Yong, I reject such evidence, as I consider the evidence of Mr Bernard O’Brien and Dr Yong to be more consistent with the presentation of the plaintiff before me.
157 I note that Ms Green, the vocational assessor relied on by the plaintiff, considers that the plaintiff would have a limited capacity to perform work as:
(i) Importer, exporter and wholesale coordinator/manager;
(ii) Customer service manager;
(iii) Clinical and office support worker.
158 She also lists various ANZSCO codes for such occupations. However, the evidence does not provide any rates of pay for people employed in jobs consistent with such codes. There is evidence from Ms Annette Webster of various award rates pertaining to some clerical positions with details of what appears to be largely the entry rates for such jobs. I highlight this issue by the reference in her evidence to an accounts clerk earning $19.07 gross per hour pursuant to Level 2 Year 1 of the Clerks – Private Sector Award 2010. Such amount does not take account of any overtime or paid allowances. However, an account clerk – Code ANZSCO 5511 – was earning $850 (on average) as at 6 May 2011[98] and according to the Labour Market Analysis Report dated 18 June 2013, a thirty-seven-year-old was earning on average $1,052.00 gross per week based on a 38-hour working week.[99]
[98]See Exhibit 5 at page 122 DCB
[99]See Exhibit 5 at page 153 DCB
159 Accordingly, I am of the opinion that the plaintiff could work for at least 20 hours as a supply and distribution manager and, according to the labour market analysis report dated 18 June 2013,[100] such employment for a thirty-seven-year-old would generate $1,826 gross per week based on a 38-hour working week. I am also of the opinion that the plaintiff could be employed for a similar number of hours as an accounts/marketing manager which, according to such report, would generate $1,494 gross per week. If the plaintiff was employed in either capacity working 20 hours a week, he would earn more than $572.02 gross per week, which is 60 per cent of the “without injury earnings” expressed on a weekly basis.
[100]See Exhibit 5 at pages 153−163 DCB
160 I should also add that, in any event, I am not persuaded that, pursuant to s134AB(38)(e)(ii) of the Act, the plaintiff will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”. Given his vocational background, and what I consider to be his capacity for work, I am not persuaded that his capacity for such work has been reduced by 40 per cent or more.
161 Accordingly, I find that the plaintiff fails to discharge his onus in relation to the pecuniary loss aspect.
Conclusions
162 I grant leave for the plaintiff to bring common law proceedings for pain and suffering damages in respect of his low-back injury suffered on or about 8 August 2009.
163 I will hear the parties on the question of costs.
ANNEXURE “A”
1 The plaintiff tendered the following documents:
Exhibit A:
– Affidavits of the plaintiff sworn 14 June 2012 and 10 July 2013 (contained at pages 10-27 Plaintiff’s Court Book (“PCB”) and at pages 38-42 PCB);
– Affidavit of Julian Dieckhaus sworn 21 March 2013 (at pages 34-35 PCB);
– Affidavit of Greg Vandeligt sworn 2 May 2013 (at pages 36-37 PCB);
– Affidavit of the sister of the plaintiff, Adriana Sartor, sworn 26 August 2013 (at pages 42a-42b PCB).
Exhibit B:
– Worker’s Claim Form dated 16 August 2009;
– Employer claim report dated 21 August 2009 (at pages 43-46 PCB).
Exhibit C:
– Lumbar spine x‑ray dated 21 September 2009;
– MRI scan lumbar spine dated 29 September 2009;
– MRI scan lumbar spine dated 14 January 2010;
– Bone scan lumbar spine dated 14 January 2010;
– Operation report dated 3 September 2010;
– CT scan lumbar spine dated 3 September 2010;
– MRI scan lumbar spine dated 28 December 2011
(at pages 63-69 and page 71 PCB).
Exhibit D:
– Medical reports of Dr D Fraser dated 14 December 2010, 16 May 2011, 3 August 2011, 22 February 2012, 22 March 2012 and 25 January 2013;
– Physiotherapy report of Mr D Philipps dated 19 January 2011;
– Medical reports of Mr B O’Brien dated 22 July 2011, 6 May 2013, and questionnaire dated 16 September 2011;
– Report of the psychologist, Mr A Williams, dated 12 March 2012;
– Medical report of Dr A Ismail dated 28 July 2013;
(at pages 72-106 PCB).
Exhibit E:
Medico-legal reports of:
– Mr J O’Brien dated 3 October 2011 and 1 December 2011;
– Dr D Middleton dated 4 July 2012, 14 June 2013 and 17 July 2013;
– Mr P D Dohrmann dated 15 February 2013;
(at pages 126-185 PCB).
Exhibit F:
– Reports of Ms Katrine Green dated 12 July 2013, 7 August 2013 (at pages 107-125a PCB);
– Reports of Flexi Personnel both dated 7 August 2013 (at pages 197a-197f PCB).
Exhibit G:
– Summary of income taxation returns (at page 198 PCB).
Exhibit H:
– Letter from RMIT solicitors for plaintiff dated 28 August 2013.
Exhibit I:
– WorkCover Certificate of Capacity (at pages 85(a)–85(h) PCB).
2 The defendant tendered the following material:
Exhibit 1:
– DVD surveillance footage dated 6 September 2012, 7 December 2012, 21 November 2012, 25 March 2013, 13 June 2013 and 19 June 2013.
Exhibit 2:
– LinkedIn profile.
Exhibit 3:
Medical reports from:
– Dr J Lange dated 2 December 2009 and 22 December 2009;
– Dr A Jager dated 25 October 2011;
– Dr D Yong dated 10 April 2013-09-27
(at pages 8-29 Defendant’s Court Book (“DCB”)).
Exhibit 4:
– Return to work plans dated 13 November 2009, 29 January 2010 and 14 April 2010 (at pages 109-114 DCB).
Exhibit 5:
– 130-week vocational assessment report dated 9 December 2011 (at pages 138-144 DCB);
– Labour market analysis report dated 18 June 2013 (at pages 153-163 DCB);
– NES vocational assessment report dated 3 May 2011;
– NES job seeker plan dated 30 September 2011;
– NES week 8 job seeker plan dated 11 November 2011;
– NES week 16 job offer plan dated 13 January 2012;
– NES worker plan dated 16 April 2012;
(at pages 122-152 DCB).
Exhibit 6:
– Report of psychiatrist, Dr D Weissman, dated 17 July 2013 (at pages 186‑197 PCB).
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