Potkonjak v Frontline Australasia Pty Ltd
[2016] VCC 387
•14 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-05114
| NIKOLA POTKONJAK | Plaintiff |
| v | |
| FRONTLINE AUSTRALASIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 February 2016 | |
DATE OF JUDGMENT: | 14 April 2016 | |
CASE MAY BE CITED AS: | Potkonjak v Frontline Australasia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 387 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the cervical spine – pain and suffering and pecuniary loss damages – disentanglement – range case – plaintiff’s credit
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to the plaintiff to commence common law proceedings to recover damages for injury suffered over the course of his employment with the defendant after 20 October 1999.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr M K Clarke | Zaparas Lawyers |
| For the Defendant | Ms A M Magee SC with Mr S D Martin | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and economic loss.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application is the plaintiff’s cervical spine. The mental or behavioural disturbance relied upon is an Adjustment Disorder with Anxiety and Depression.
6 The plaintiff relied upon three affidavits, sworn 19 May 2014, 3 August 2015 and 19 February 2016. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
7 Counsel for the defendant informed the Court that:
(i) there is a disentanglement issue involved;
(ii) this is a “range case”; and
(iii) the plaintiff’s credit was in issue. The reliability and credit of the plaintiff is significantly affected by the surveillance.
The Plaintiff
8 The plaintiff is aged forty-nine years. He was born in Yugoslavia and moved to Serbia at the time of the Croatian War. He came to Australia in 1992 and undertook a basic English course over twelve months.
9 The plaintiff was employed as a machine operator with Kos Metal in Huntingdale, where he worked for six years. Over the next six years, he obtained work through a labour-hire service.
10 In October 2006, the plaintiff commenced employment with the defendant, where he cleaned and packed bumper bars for motor vehicles. He had to inspect the bumper bars to see if there were any imperfections. About 60 per cent of the bumper bars examined had to be fitted with a thin rubber strip along one edge of its length. This involved the bending of his head within about 35 centimetres of the bumper bar. Depending on the type of bumper bar and process he had to perform, he would pack between 50 and 80 bumper bars per day. The work involved prolonged bending and twisting of his neck. He stood whilst performing his work. The plaintiff was consistent in describing the nature of his work to the medical practitioners he saw.
11 The plaintiff’s evidence was that in August 2011, he began to feel tightness and pressure in his neck, upper back and shoulders. He developed headaches. He consulted his general practitioner on a number of occasions. He continued to work despite the neck pain. His general practitioner suggested he seek alternate employment, which he thought would be difficult because of his lack of English. He had approximately three weeks off work at about Christmastime. He returned to work in January 2012 but could only work for two to three days because of the neck pain.
12 The plaintiff consulted Dr Nikolic, who organised a radiological examination and referred him to an osteopath for massage, and a physiotherapist. He was referred to a neurosurgeon, Mr Xenos, who suggested an injection into his neck which was not approved by WorkCover. He attended a pain clinic in Oakleigh for a month, but it did not provide any improvement in his symptoms. He attended physiotherapy in early 2013, which provided temporary relief. He was later referred to another neurosurgeon, Mr Timms, who suggested neck surgery, which the plaintiff was scared to undertake. He attended further physiotherapy and hydrotherapy.
13 Currently, the plaintiff consults his general practitioner monthly and is awaiting approval for further hydrotherapy. He takes medication daily.
Surveillance
14 The plaintiff was under surveillance on 16 days for a total of 95.5 hours between October 2012 and January 2016, the first day being a spot check. The duration of the film obtained and shown totalled 1 hour, 52 minutes and 35 seconds. There were six films in all. The films were taken on 24 October 2012, 23 and 24 March 2013, 2 November 2014, 16 August 2015, 29 November 2015 and 8 and 10 January 2016.
15 According to the defendant’s admissions, on 24 October 2012, the plaintiff was under surveillance for 7.5 hours and approximately 5 minutes of film was obtained.
16 On 23 March 2013, the plaintiff was under surveillance for 7 hours and on 24 March 2013 for 4.5 hours, with a combined total of 2.48 minutes of film obtained.
17 On 2 November 2014, the plaintiff was under surveillance for 9 hours and 16.45 minutes of film was obtained.
18 On 16 August 2015, the plaintiff was under surveillance for 8 hours and approximately 5 minutes of film was obtained.
19 On 29 November 2015, the plaintiff was under surveillance for 8 hours and approximately 56 minutes of film was obtained.
20 On 8 January 2016, the plaintiff was under surveillance for 9.5 hours and on 10 January 2016, for 7 hours, with a combined total of 26 minutes of film obtained.
21 I was informed that I was shown all film taken.
22 The plaintiff was surveilled on eight days for a period of 35 hours where no film was taken. Accordingly, I can conclude that the plaintiff was not seen at all, or not seen doing anything thought to warrant filming on those other occasions.
23 The film of 24 October 2012 showed the plaintiff walking at a slow pace down the driveway with his head tilted slightly forward. He was then seen at a car park, which he identified as Bunnings. As he walked, he turned his head to his right before turning left to look over his left shoulder. He was observed inside the store walking at a slow pace. He was seen to squat and kneel, standing up from both positions without assistance. He also bent over to pick something up off the ground. I accept that the plaintiff walked slowly, could move his head to the left and right, and could squat and kneel and get up from those positions without assistance.
24 In the film recorded on 23 March 2013, the plaintiff walked at a slow pace from his car to where a group of people were standing outside a building. He moved out of view and came back into view with a young girl whom he identified as his daughter. They walked back to the car. He was observed to stop briefly and shake hands with an unknown man.
25 On 24 March 2013, the plaintiff was seen with his family in a car park.
26 The film taken on 2 November 2014 showed the plaintiff attending the Parkmore Shopping Centre with his family. It showed him using his neck in a normal manner to look over his shoulder and showed him looking in a shop window with his head flexed forward.
27 The film taken on 16 August 2015 showed the plaintiff and his family outside a church and a social club. It showed him moving his neck from side-to-side to look at people, and his neck was flexed forward. The plaintiff was cross-examined as follows:
Q:“… You went up the steps two at a time?---
A:Yes.
…
Q:You weren’t taking any precautions to protect yourself whilst going up those steps, were you?---
A:Yes.
Q:In fact, you went up those steps in a very quick and spritely manner, would you agree?---
A:Yes.
Q:That is how you normally present on a normal day, every day, isn’t it?---
A:Not every day.
Q:It is very different from the way you present to your doctors, isn’t it?---
A:No, not – it’s not like that.
Q:Have you ever told a doctor that you can go up a set of steps two at a time?---
A:No.”[1]
[1]Transcript (“T”) 42, Lines (“L”) 10-22
28 While both counsel accepted the plaintiff went up the steps two at a time, that was not correct. He went up steps one at a time at a faster pace than he was observed to move in the balance of the film.
29 The film taken on 29 November 2015 showed the plaintiff in the car park of a church and social club. The plaintiff was seen raising his arm and pointing to a number of things. He moved his neck from side-to-side. He was seen sitting outside the social club with two other people, conversing with them and turning his head using his neck. The plaintiff was shown trying to start his car. He was seen in a position where his lower body was partially outside the vehicle, twisting his upper body to lean across the driver’s seat with his head in a position under the dashboard. He agreed he got in and out of the car in the above position on a number of occasions, until the car started.
30 The plaintiff then drove to the Parkmore Shopping Centre (“the Centre”). He was seen seated at the food court and wandering around the Centre, then his daughter, aged eight, sat on his lap to give him a hug. He walked to the car and attempted to start the car again. He agreed that he would have attempted to start his car on approximately thirteen occasions that afternoon. He agreed that when he got back into the car to the driver’s seat he was not restricted in any way. In re-examination, he said it was very difficult to bend, he had increased pain and he had no choice, as his wife did not know how to start the car in that situation. That night he experienced pain in his neck. He said he had increased pain after his daughter sat on his lap and gave him a hug, but he could not refuse her.
31 The film taken on 8 and 10 January 2016 showed the plaintiff attending the Link Educational Supplies shop with his wife and children. He thought they were probably buying school books and he drove to the shop. It showed the plaintiff looking left and right on a number of occasions. He was then seen getting into the car and driving to the Centre and walked around the Centre looking into shops with his family. He was seen to pick up a pair of trousers to above shoulder height. He then bent to look at an orange garment and proceeded to the food court, where he was shown moving some chairs to a table. He was observed to raise his hands above his head and put them to the back of his head and stretch out.
32 On 10 January 2016, the plaintiff was seen at the church and social club, walking to a car and speaking to someone, or leaning in towards the car. He moved his head from left to right using his neck. He was able to bend his head forward using his neck in a flexed position.
33 The plaintiff’s evidence was that he could go shopping only for a short time of 30 or 45 minutes due to neck pain.[2] The films showed him with his family walking around the Centre for longer periods; however, he was also observed sitting for periods at the Centre.
[2]T24, L11-12
34 In cross-examination, the plaintiff gave evidence that any difference between his presentation to doctors and presentation on film was because he took increased medication when he socialised.[3]
[3]T52, L9-13
35 None of the surveillance was shown to the medical witnesses. As a result, no medical witness commented on the plaintiff’s neck movement in the film as compared with what he demonstrated on examination.
36 I concluded that the surveillance showed the plaintiff going about his activities in a slow manner. On occasions he smiled but generally looked sad. The film showed the plaintiff had greater movement of his neck than he demonstrated to the Court. It showed him at Bunnings squatting on a few occasions and kneeling. He was able to rise from those positions without assistance. The plaintiff’s evidence was that he rarely performed those acts. If he did, he needed to hold onto something when getting up from a kneeling and squatting position.
37 The film showed the plaintiff attempting to start his car on numerous occasions with his head under the dashboard. The plaintiff’s evidence was that his wife did not know how to start the vehicle in that situation. I accept that the plaintiff was in an emergency situation when he performed that action.
38 I concluded, apart from the incident with the starting of the car, which I accept was an emergency situation, and the fact that the plaintiff was shown to have greater movement with his neck than he demonstrated to the Court, and he being able to squat and kneel without assistance, the films were consistent with the plaintiff’s presentation in Court. The films showed the plaintiff undertaking his daily activities in a slow manner.
Credit
39 The plaintiff gave his evidence through an interpreter. A number of the medical witnesses commented on his poor English and difficulty with communication.[4] A number of the witnesses commented on the fact the plaintiff moved slowly and looked quite sad. This was consistent with his appearance in Court and on film.
[4]Dr Mangos and Mr Flanc
40 The plaintiff answered questions directly. He made concessions that:
· he had increased his visits to church since ceasing employment;[5]
[5]T22
· he had the ability to shop but only for a short time;[6]
[6]T24
· he had the ability to stretch, move his hands to shoulder level and wave with pain;[7]
[7]T26-27
· he had leaned down and across under the car dashboard, moving his neck on occasions in surveillance films;[8]
[8]T44
· he had the ability to have to his daughter on his lap;[9] and
· he acknowledged that he demonstrated greater neck movement in surveillance film in January 2016 than when he presented to Mr Brownbill[10] and Mr Timms.[11]
[9]T45
[10]T50
[11]T49-50
41 The plaintiff was consistent in what he told doctors. All of the current medical witnesses accepted that he had a physical injury which was work related. The issue was the extent of the injury.
42 A number of the current medical witnesses commented on his neck movements.
43 Mr Brownbill, consultant neurosurgeon, noted that on examination, the plaintiff had restriction of cervical spine movements. There was no objective neurological abnormality of the upper limbs or lower limbs and there were no signs of radiculopathy or myelopathy. He said the plaintiff’s demeanour and responses throughout the interview and examination indicated a likely marked emotional reaction response with depression, the full assessment of which lay outside his area of expertise.
44 Mr Dooley, orthopaedic surgeon, said the plaintiff had a psychological condition which dominates his clinical presentation.
45 In considering the credit of the plaintiff, I must consider the evidence as a whole. There was evidence in the plaintiff’s affidavits that was not challenged by the defendant. I accept that on occasions he may have exaggerated his limitation of neck movement. Overall, I accept that his evidence was consistent with what he reported to medical witnesses and was shown on film. I accept that he was a truthful witness.
Analysis of the evidence
Physical injury
46 The majority of the current medical evidence is that the plaintiff suffered a physical injury which is work related and which was variously described as:
·cervical disc injury and foraminal stenosis from disc osteophyte formations in his cervical spine at the levels of C5-6 and C6-7[12]
·chronic condition of nerve compression, C5-6 and C6-7[13]
·degenerative condition of his cervical spine but is being influenced significantly by non-organic factors which form part of a Chronic Pain Syndrome in which there is a sensitisation of pain pathways causing pain which is greater in severity and extent than that expected from the physical injury alone[14]
·pain in the cervical spine on the bases of C4-5 mild right foraminal narrowing, and C5-6 mild to moderate bilateral foraminal narrowing with possible irritation of nerve roots at these levels
·pain and movement restrictions in both upper extremities, more on the left than the right side[15]
·sustained aggravation of cervical spine degenerative changes rendering them symptomatic, with a resulting emotional reaction component with likely depression[16]
·aggravation of pre-existing degenerative disease of the cervical spine and Chronic Pain Disorder[17]
·degenerative disc disease of the cervical spine affecting the C5-6 level.[18]
[12]Mr Timms, Plaintiff’s Court Book (“PCB”) 66.3
[13]Dr Nikolic, PCB 45
[14]Mr Flanc, PCB 91
[15]Mr Kossman, PCB 102
[16]Mr Brownbill, PCB 109
[17]Dr Slesenger, PCB 122
[18]Mr Dooley, Defendant’s Court Book (“DCB”) 50
47 Of the current medical evidence, a number of the medical witnesses referred to an aggravation of a pre-existing degenerative disease of the cervical spine. Mr Brownbill[19] said the plaintiff had sustained an aggravation of the cervical spine degenerative changes, rendering them symptomatic. Dr Slesenger, occupational physician, said the plaintiff had an aggravation of pre-existing degenerative disease of the cervical spine[20] and Mr Dooley said the plaintiff aggravated an underlying degenerative disc disease of the cervical spine in the course of his work.[21]
[19]PCB 109
[20]PCB 122
[21]DCB 50
Aggravation injury
48 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJ, in Petkovski v Galletti,[22] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury.
[22]Supra
49 The Court said:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment.”[23]
[23](supra) at 443
50 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a permanent serious impairment or loss of body function. Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the work injury was “serious”.
51 The plaintiff’s evidence was that in August 2011, he began to feel tightness and pressure in his neck, upper back and shoulders and started to get headaches. He consulted his general practitioner in August 2011. In late September 2011, he experienced dizziness and nausea. The plaintiff ceased work on 18 January 2012. There was no evidence of the plaintiff suffering neck pain prior to August 2011. Accordingly, on a Petkovski v Galletti[24] analysis, the impairment extent at the hearing was referable to the work injury.
[24][1994] 1 VR 436
52 I accept the majority view of the medical evidence that the neck injury is related to the plaintiff’s employment with the defendant. This is supported by the medical opinion of Mr Timms, treating neurosurgeon, who said he believed the plaintiff’s condition is consistent with the stated cause and does not represent an underlying aggravation of a pre-existing injury or underlying condition.
Disentangling
53 Counsel for the defendant submitted that the medical evidence suggested a significant psychological component. In essence, the issue is whether, and to what extent, I can be satisfied that the plaintiff’s current pain and disability in the neck has an organic basis, or whether the symptoms are due to the non-organic overlay. The real issue is the nature and extent of the organic component.
54 In Meadows v Lichmore Pty Ltd,[25] Maxwell P said:
“… serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[25][2013] VSCA 201
55 Accordingly, it is necessary for me to determine whether, based on the medical evidence, there is a substantial organic basis for the pain and suffering consequences and/or economic consequences relied on by the plaintiff.
56 All of the current doctors accepted that the plaintiff suffered an injury to the cervical spine. As I have referred to previously, some of the medical witnesses accepted that the plaintiff had an aggravation of a pre-existing degenerative disease of the cervical spine. Further, a number of the medical witnesses expressed the view that there was a Chronic Pain Disorder, as well as the cervical spine injury.[26] Mr Flanc, vascular and general surgeon, elaborated on what he regarded as the non-organic factors, and said:
“It is likely that his symptoms are being significantly influenced by nonorganic factors which form part of a chronic pain syndrome in which there is a sensitisation of pain pathways causing pain which is greater in severity and extent than that expected from the physical injury alone.”[27]
[26]Dr Slesenger, PCB 122, and Mr Flanc, PCB 90 and 91
[27]PCB 91
57 I accept the Chronic Pain Syndrome, as defined by Mr Flanc, is a physical injury.
58 Mr Kossmann, orthopaedic surgeon, said there was cervical spinal pain due to the degenerative disc disease of the cervical spine at C4-5 and C5-6. He noted that the plaintiff seemed to have developed a psychiatric condition which may be negatively influencing the physical symptoms. He recommended further investigation and treatment with a psychologist.
59 Mr Timms confined himself to the physical injury alone. He said the plaintiff had injured his cervical spine and developed neck and upper limb symptoms from a workplace injury. He diagnosed cervical disc injury and foraminal stenosis from disc osteo formations in his cervical spine at the levels of C5-6 and C6-7.
60 Mr Timms re-examined the plaintiff following the most recent MRI scan of December 2015.
61 Dr Slesenger, occupational physician, referring to the physical injury alone, said the plaintiff could not return to pre-injury duties because of the duties of the job which require static postures and manual handling requirements which he cannot perform. He said the plaintiff could not return to alternate duties because of his current level of symptoms and the severe restriction to his range of cervical spinal movements. He thought a pain management program would assist the plaintiff to adapt to his disability, but is unlikely to result in an improved level of function, such that he could return to work.
62 As opposed to those views, Mr Brownbill diagnosed an aggravation of the cervical spine degenerative changes, rendering them symptomatic, which was consistent with occurring as a result of the described repetitive work activities with associated neck flexion and turning. He accepted the plaintiff had a resulting emotional reaction component with likely depression, which was outside his expertise, but then went on to say he considered it was now a major contributor to his ongoing symptoms.
63 Mr Dooley examined the plaintiff on one occasion in January 2015. He accepted the plaintiff had a naturally occurring degenerative disc disease of the cervical spine, mainly at the C5-6 level, that his work aggravated the underlying condition, but he did not believe the constancy and intensity of the plaintiff’s ongoing pain and his described disability could be explained by the organic injury alone. He said the plaintiff’s psychological reaction dominates his current presentation.
64 Mr Dooley was provided with the current MRI scan. In his second report, dated 22 February 2016, he said the current MRI scan showed multi-level naturally occurring and age-related degenerative disc disease affecting the C5-6 and C6‑7 levels, which one would expect, over a three to four-year period, and some slow progressive radiological changes in relation to the degenerative disc disease as part of its natural evolution. He thought the clinical history and physical examination are important to a diagnosis and, in this case, it was his opinion that the plaintiff’s psychological condition dominated his clinical presentation. Given the plaintiff’s presentation, and noting his psychological reaction, it would be best to pursue a conservative line of management rather than undertaking a surgical procedure. I accept that Mr Dooley was expressing a view as to whether or not the plaintiff will eventually come to surgery.
65 Mr Kossman doubted that surgery would resolve his issues.
66 Mr Flanc said he did not require surgical intervention.
67 Dr Slesenger said he was reluctant to see the plaintiff undergo surgery, and noted the caution associated with Mr Timms’ recommendation.
68 On the basis of the up-to-date medical reports, I accept that there is a substantial organic basis for the plaintiff’s pain and suffering and loss of earning capacity consequences.
69 Most medical witnesses accepted that the plaintiff’s prognosis for recovery was guarded. Given that the plaintiff has been suffering since 2011, I accept that the condition is permanent.
70 It is now necessary for me to consider the loss of earning capacity.
Loss of earning capacity
71 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. I will be assisted by the more recent medical opinions in this case.
72 The opinions of the current medical witnesses is that the plaintiff has no capacity for pre-injury employment based on his physical injury. The majority of the current medical opinion is that the plaintiff does not have any capacity for alternate employment. That view was expressed by Mr Timms, treating neurosurgeon.[28] He said the plaintiff’s condition had stabilised and that he remained completely incapacitated for work.
[28]PCB 66.3
73 Mr Flanc said the plaintiff could not cope with his pre-injury duties, or any work which involved keeping his head still for long periods, or any heavy use of his upper extremities. He said the plaintiff had a theoretical capacity for light alternative duties on a part-time basis, provided he can avoid keeping his head in one position and providing he can avoid repetitive or heavy use of his upper limbs. Further, he said, when one takes into account his age, limited English, education and work experience, and the significant non-organic component of his disability, it is more than likely he has no realistic work capacity. I accept that he is talking about the physical injury alone.
74 Dr Slesenger, specialist occupational physician, said the plaintiff was unfit to return to his pre-injury duties. He noted the job demands, including static postures and manual handling requirements, and said the plaintiff could not perform those tasks. In respect to alternative duties, Dr Slesenger said that with the plaintiff’s current level of symptoms and the severe restrictions to his range of cervical spinal movements, he was of the opinion that it was unlikely that he would be able to return to performing alternate duties. I accept that he limited his opinion to the plaintiff’s physical injuries.
75 Mr Kossmann said, in his opinion, the plaintiff had no work capacity to return to his pre-injury employment. He suffers from ongoing pain and Mr Kossmann did not believe he had a work capacity at all, while he went on to say that the plaintiff:
… seems to have developed a psychiatric condition, which may influence negatively his physical symptoms. I recommend further investigation and treatment of his psychiatric condition. At the moment I regard Mr Potkonjak as a 100% incapacitated”[29]
I accept that Mr Kossmann has formed his opinion based on the physical condition alone.
[29]PCB 102
76 Dr Nikolic, the plaintiff’s general practitioner, said the plaintiff remains unemployable for an uncertain time and is not able to perform any pre-injury duties, nor any alternative duties at all.[30] It was unclear whether she was restricting her comments to the plaintiff’s physical injury or was including the mental element.
[30]PCB 41
77 As opposed to the above views, Mr Dooley said, from an orthopaedic viewpoint alone, the plaintiff had a physical capacity to carry out light physical work and clerical duties. He said the plaintiff would not be able to carry out regular physical work or work that involved a lot of activity at or above head level.[31] I accept that Mr Dooley said the plaintiff can return to light duty physical work and clerical duties. He cannot return to heavy physical work in the future.
[31]DCB 51
78 In respect to Mr Dooley’s comment that the plaintiff could perform clerical duties, I consider that theoretical only. The fact is the plaintiff, since being in Australia, has always performed physical work. Furthermore, the plaintiff gave his evidence through an interpreter. A number of the medical witnesses commented upon his limited English, education and work experience.
79 The plaintiff said he would like to work. He reported this to his general practitioner.[32] Dr Nikolic said he was motivated to work performing light office work with no sudden movements of the neck or keeping the neck in the flexing position for long periods.[33] This view was expressed before Dr Nikolic received the current report from Mr Timms.
[32]PCB 41
[33]PCB 43
80 Ms Schneider, vocational psychologist, from Australian Vocational Link Pty Ltd, interviewed the plaintiff and reviewed the medical opinions. As a vocational assessor, she concluded that the plaintiff had no current work capacity for his pre-injury employment as a process worker/packer. Further, based on the medical reports, he could not perform suitable alternative employment for which he is qualified, trained, experienced and/or skilled. In her opinion, even if given access to appropriate rehabilitation and vocational training, she did not believe the plaintiff could return to suitable alternative light, full or part-time work. She said the plaintiff was impeded in his efforts to return to work by the nature of his injury, physical deconditioning, and persistent pain and sleep depletion. Further, his lack of adequate current education, English language skills, computer skills and transferable skills due to minimal diversity of work experience were a factor, as was his present lack of suitability for vocational retraining.[34]
[34]PCB 145-171
81 It was put to the plaintiff that he could obtain employment as a school crossing supervisor. The plaintiff’s evidence was that he could not do that work because he would not be able to stand in one place for too long and that he would not be able to communicate with the children: he would be worried if he could not perform his job safely and securely.[35] He said he could not work as a cashier because of his pain and because of his communication skills. It was put to him that he had no incentive to work as he had no debt. The plaintiff agreed that he was not in debt but said he had two small children to support and it was very difficult to support them on a Disability Pension.[36] He said his friend had to complete the renovation work that he was engaged in at the time he was injured. He said he felt useless and worthless.[37]
[35]T61
[36]T59
[37]T62
82 In cross-examination, the plaintiff conceded that he had not taken any steps towards retraining. Apart from the defendant’s submission that the plaintiff had not attempted to improve his English skills, neither counsel addressed me on the issue of rehabilitation and training for the plaintiff. There was no suggestion or evidence that the defendant offered the plaintiff retraining or rehabilitation.
83 In view of the evidence as a whole, I accept the plaintiff has no capacity for pre-injury or suitable employment. It is not necessary to enter into an analysis of wage rates.
84 Given my findings based on the physical injury to the plaintiff, it is not necessary for me to further consider the claim for mental or behavioural disturbance or disorder.
85 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[38]
[38]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
86 Given the medical evidence, I am satisfied the plaintiff cannot return to work. The plaintiff is aged forty-nine years. He has been out of the workforce for four years. The plaintiff reported to his general practitioner his desire to return to the workforce. The plaintiff has performed physical work. He has been in constant physical employment since he has been in Australia. I accept that he was proud of his work achievements.
87 I accept that the plaintiff’s inability to return to work and to provide for his family represents a significant loss to this plaintiff, given his work history. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
88 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as “serious” as defined within the Act, when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.[39]
[39]Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at paragraph [41]
89 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity. Given the medical evidence of Mr Timms, Mr Flanc and Dr Slesenger that the plaintiff has no capacity for work currently, or into the foreseeable future, as a result of his physical condition, I find the plaintiff is effectively out of the workforce for any employment. Accordingly, there is no need to go into the analysis of wage rates, as I do not accept he has any residual capacity, given the medical evidence.
90 I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
91 In view of the matters I have described, the plaintiff has discharged the onus with respect to his physical condition regarding his loss of earning capacity.
92 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
93 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injury suffered over the course of his employment with the defendant after 20 October 1999.
94 In view of my findings, it is not necessary for me to consider whether the psychological injury constitutes a “serious injury” under s130AB(37)(c) of the Act.
95 I will hear the parties on costs.
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