Poutselas v Delphic Wholesalers (Aust) Pty Ltd and VWA
[2012] VCC 1044
•27 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00620
| LAZARUS POUTSELAS | Plaintiff |
| v | |
| DELPHIC WHOLESALERS (AUST) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 May 2012 | |
DATE OF JUDGMENT: | 27 June 2012 | |
CASE MAY BE CITED AS: | Poutselas v Delphic Wholesalers (Aust) Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1044 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the cervical spine – capacity for work
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
JUDGMENT – Application dismissed for loss of earning capacity. Leave granted for pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements | Pana Dokos Lawyer |
| For the Defendants | Mr Chamings | Thompsons Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant on 15 January 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the cervical spine, which causes the plaintiff to suffer symptoms in his neck, left shoulder, left arm and left hand.
6 The plaintiff did not pursue his application pursuant to clause (c) of the definition of “serious injury” defined as meaning permanent severe mental or permanent severe behavioural disturbance or disorder.
7 The plaintiff relied upon two affidavits, sworn 3 September 2010 and 15 May 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1]S.134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant;[2]
[2]S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the neck 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 impairment and be fairly described as being more than significant or marked and as being at least very considerable.[4]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]S134AB(38)(b) and (c)
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]S.134AB(19B) and 38E of the Act
(a) that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[6]
[6]S.134AB(38)(e)(i) of the Act
(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;[7] and
(c) that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[8]
[7]S.134AB(38)(e)(ii) of the Act
[8]S.134AB(38)(a) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, that is both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63]
12 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11]ibid at [42]
14 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
15 The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
16 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]S.134AB(38)(j) of the Act
[14] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issue
17 Counsel for the defendants informed the Court that the injury on 15 January 2007 is not conceded even though the plaintiff has been in receipt of weekly payments of compensation and has received compensation by way of impairment benefits.
18 Secondly, he does not satisfy the statutory requirements for loss of earning capacity, in that he can work longer hours, which means he cannot establish a 40 per cent loss of earning capacity.
19 Thirdly, this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
20 In his affidavits sworn on 30 September 2010 and 15 May 2012, the plaintiff deposes that:
· In February 2006, he commenced employment with the first defendant as a supervisor, which involved a lot of heavy and repetitive lifting.
· On 15 January 2007, while he was unpacking a container of cheese, he became aware of jabbing pain in his neck and left shoulder. The pain got worse and when he left work he had severe pain in his neck, left shoulder and left arm, and numbness in part of his left hand.
· The next day he did not go to work and saw Dr Olenski, who recommended painkillers and physiotherapy. On 18 January 2007, he commenced physiotherapy, which continued during 2007 and 2008.
· By July 2007, his symptoms had improved because he was resting and receiving physiotherapy. He felt fit to return to light duties, but the first defendant did not have light duties available.
· In May 2003, he injured his neck at work and was off work for four months before returning to light duties. By April 2004, he was no longer suffering neck pain or symptoms in his left shoulder, arm or hand and returned to physical work.
· On 27 December 2007, he was assaulted, which aggravated his neck pain for a month or two before it returned to the previous level.
· In September 2007, he undertook a real estate course, but was unable to obtain employment in that industry.
· In July 2008, he commenced a Certificate of Social Science and undertook voluntary telephone counselling.
· In early 2009, he qualified as a Greek interpreter and currently undertakes interpreting work on a casual basis. More interpreting work was available but he does not do it because the work aggravated his neck pain. Driving to and from interpreting assignments also aggravates the pain in his neck, left shoulder and left arm. He also performs casual chess tutoring.
· He continues to suffer neck pain every day, which comes and goes. Activities that involve tilting or bending forwards aggravate his neck pain. He also has intermittent pain in his left shoulder and left arm. Lifting anything off the ground aggravates his neck and left shoulder pain. He continues to suffer from constant numbness and tingling in his left thumb, index and middle fingers.
· Before his injury, he played soccer occasionally, but now the running aggravates the pain in his neck. He can no longer go jogging because the jarring aggravates the pain. He can no longer perform handyman work at his house and is limited in the household chores he can perform. Vacuuming is particularly difficult and lifting grocery bags aggravates the pain. His injury and inability to work aggravated problems in his relationship with his wife and they separated in the second half of 2007.
· In July 2011, he visited family and friends in Greece for two months. He found the flight back aggravated his neck pain, which settled after a few weeks. In November 2011, he returned to Greece for five months.
The Plaintiff’s Evidence in Cross-examination
21 The plaintiff was cross-examined and gave the following pertinent evidence:
· He thought he was injured after lunch when he was unloading a container.
· He agreed that the employer’s form suggested the injury occurred at 11:30 am, which could be correct.
· He agreed that Harry Gregory advised him that he would not continue as supervisor but as a storeman/driver and that he should “think it over”.
· He denied that because he knew he was going to be demoted he alleged an injury on 15 January 2007 and submitted a claim form.
· He agreed he saw his general practitioner on 16 January 2007 with the same symptom of left shoulder pain, numbness in his left hand and fingers that he had had with his previous injury.
· He agreed when he saw Mr Brazenor on 11 April 2007 that he may have been pain-free when he saw him in the morning, because he feels better in the morning than the afternoon, but now the pain is actually getting worse.
· He agreed Mr Brazenor said in November 2008 that he believed he was capable of working until normal retirement age of sixty-five years.
· When he was assaulted in December 2007, he attended The Alfred Hospital and an MRI scan was performed. He could not remember whether he was told that the changes in the MRI scan were most notable at C6-7 level.
· He said he has had continuing problems with his neck since 2003. He said the problems were on and off but in 2004, he was fully fit to work at Cope Transport. He said after the assault the pain returned to the level it was prior to the assault.
· He agreed that in January, June and July 2006, he attended the Albert Park Physio with symptoms in his neck.
· In February 2006, he saw his general practitioner about neck pain which was different to the pain he now suffers in that it was temporary.
· He said he could no longer drive a forklift because it involved looking up and extreme stretches of the neck.
· He said he is never pain-free. The limitations are there. There are some days which are better than others.
· Prior to 30 June 2011, he was working 8 hours a week as an interpreter. He agreed that his neck was “pretty good” while he was in Greece.
· He agreed in October 2011, Mr Brazenor said that his neck was now normal for a fifty-year old.
· He has computer skills. He accesses interpreting work via the internet but he is not a fast typist. He has declined interpreting work. He said generally, an interpreting assignment averages between 50 and 55 minutes. There is a 90-minute maximum before an extension is required but it could be a 5-minute assignment. He said he needed a rest period between assignments.
· He agreed if he worked 20 hours as an interpreter he would earn almost as much as he earned with the first defendant.
· He agreed when teaching chess he could look around and his head was not in a fixed position. All he was required to do was deliver the chess lesson. He was assisted by an assistant teacher. He is paid $43.50 per hour.
· While interpreting he was mildly mobile. He would sit if all the parties sat. If the patient moved around and went behind a screen, he could stretch and move. He agreed it was not a physically arduous occupation.
· He said he could not work full-time as a supervisor in a factory as he could not handle the full-time hours.
· He said he would not be able to get a real estate job.
22 In re-examination, the plaintiff said:
· In the fifteen months he worked at Cope Transport from April 2004 to July 2005, he had no problems with his neck.
· When performing telemarketing at Elsternwick, he had no problems with his neck.
· Between February 2006 and January 2007, he performed heavy lifting with the first defendant and had no neck problems.
· Other than the attendances in January, July and August 2006 at the physiotherapist, he had no other problems with his neck.
Investigations
23 In 2003, a CT scan of the cervical spine showed:
“At C5-6 there is a broad disc bulge and associated osteophyte formation which impinges on the central aspect of the spinal canal as well as the left C5 exit foramina.”
24 An MRI scan of the cervical spine showed C6-7 moderate to severe left foraminal narrowing.
25 On 21 March 2007, a CT scan of the cervical spine showed multilevel disc degeneration with asymmetric marginal spur and foraminal disc protrusion at C6-7 comprising the exiting left C7 nerve and resulting in minimal cord compression and rotation. These appearances are unchanged in comparison to the previous MRI scan dated 1 July 2003.
26 On 29 December 2007, a report of the cervical spine showed multiple degenerative disc disease most marked at C6-7 with moderately severe left C6-7 foraminal stenosis.
27 On 16 September 2008, an MRI scan of the cervical spine concluded left paracentral disc protrusion is demonstrated at C4-5 with compromise of the exiting left C5 nerve with asymmetric generalised disc bulge and marginal spur at C6-7, resulting in high-grade compromise of the exiting left C7 nerve and mild to moderate central canal stenosis with minor cord flattening. Overall, these appearances are unchanged in comparison to the previous MRI scan dated 21 March 2007.
28 On 8 July 2010, a CT scan of the cervical spine concluded left C6-7 foraminal stenosis.
29 On 8 July 2010, an MRI scan of the cervical spine concluded multilevel disc degeneration with small central/left paracentral disc protrusion at C4-5 without neural compromise. The size of this disc protrusion has decreased in comparison to a previous examination dated 16 September 2008. Generalised disc bulge and marginal spur results in moderate bilateral bony foraminal stenosis, worse on the left than the right and mild central canal stenosis at C6-7. The degree of central canal stenosis has minimally progressed in comparison to previous examination and there is minor degenerative end plate oedema at this level not previously demonstrated. There is no definite new focal disc protrusion.
The Plaintiff’s Medical Evidence
Mr G A Brazenor
30 On 16 March 2007, the plaintiff was referred to Mr Brazenor, neurosurgeon, by his general practitioner. The plaintiff had received treatment from Mr Brazenor in relation to an injury to his neck in 2003. Mr Brazenor arranged CT and MRI scans. In November 2008, it was his view that the plaintiff had suffered two disc injuries, the first in May 2003 on the left side at C6-7, from which he recovered completely; and on 15 January 2007, a second disc lesion at C4-5, when working with the first defendant. It was his view that from July 2007 the plaintiff was fit for full-time employment in management or real estate. He accepted that the plaintiff could not return to a job involving repeated bending at the waist, repeated lifting of objects from below his waist level or twisting of his neck into extreme positions. He said he could not do a job involving persistent periods of standing or sitting, thus he could not work on a production line, in a sandwich bar or as an overhead crane operator. He thought the work restrictions stemmed from his first injury of 2003 insofar as the restrictions were permanent and non-negotiable from that time.
31 By September 2010, Mr Brazenor said the plaintiff had essentially recovered from both his injuries, although he had a chronic situation of narrowing of the invertebral foramina on the left side at C6-7. He said the plaintiff could work full-time at a non-physical job, such as interpreting, selling real estate, a security guard in a gallery or shopping centre. He could perform light retail sales, be a parking officer or distribute pamphlets. As a result of his neck injuries, he will be forever unable to do a job involving dropping of his chin to his chest nor will he be able to do a job involving repeated accessing of levels below his waist.
32 In November 2011, Mr Brazenor said that the plaintiff’s neck was probably now within normal limits for his age. He reiterated his conclusions were as in his previous report of September 2010.
Dr Michael Olenski
33 On 16 January 2007, the plaintiff consulted Dr Olenski, general practitioner, complaining of acute neck pain radiating down into his left forearm and hand. The plaintiff complained of left shoulder pain and noticed numbness in his left second and third fingers. The plaintiff reported that he had been injured at work when unloading containers. Dr Olenski referred the plaintiff to Mr Brazenor in March 2007. It was Dr Olenski’s view that the plaintiff was likely to continue to have intermittent pain in the neck and numbness in the fingers. He said the plaintiff needed to continue with the physiotherapy for his shoulder injury.
34 In April 2008, Dr Olenski reported that the plaintiff had consulted him in respect to the assault after he was discharged from hospital. Dr Olenski said the plaintiff suffered an aggravation of his previous neck injury. He compared the MRI scan in 2007, which reported “minimal impingement of the left C7 nerve” with the MRI scan in 2008, which reported “moderate to severe impingement of the left C7 nerve root”. Dr Olenski said there had been a further prolapse of the disc resulting from the assault, but that was likely to settle with time. He said the plaintiff was treated with analgesia and would require a full neuro-surgical assessment before he could make a clear prognosis.
35 In April 2009, Dr Olenski reported that the plaintiff’s prognosis was guarded. He said the plaintiff would not be able to do any heavy manual lifting for a period of five years whilst the disc lesion repaired. He said the left shoulder problem had improved. He thought the plaintiff was fit for modified duties.
Mr Anthony J Buzzard
36 On 6 August 2008, the plaintiff was examined by Mr Buzzard, surgeon, at the request of the defendants’ insurer. It was Mr Buzzard’s view that the plaintiff had a left-sided C7 nerve root problem, associated with the C6-7 disc pathology. He said the imaging report of March 2007 noted that the radiological findings were unchanged from the MRI scan dated 1 July 2003. He said that despite symptomatic recovery from 2005 to 2007, he accepted that there was an aggravation of a pre-existing cervical disc pathology as a result of the January 2007 incident.
37 He said that the plaintiff’s left hand sensory disturbance was worsening and he thought there was a reasonable argument for the plaintiff to have a cervical discectomy and neurolysis of C7. He did not think that the plaintiff’s neck and left arm problems were improving. In respect to the plaintiff’s employment capacity, he said the plaintiff ought not to be working in a job involving a range of movement of his neck or involving substantial lifting; that is, he is not capable of pre-injury employment, which is unlikely to change.
38 He said the plaintiff was physically capable of modified duties, in particular, a Greek speaking bilingual interpreter. He said the plaintiff would be capable of many other forms of similar work.
Ms Virginia McDonald – Albert Park Physiotherapy
39 In August 2008, Ms McDonald provided a report regarding the plaintiff, whom she had been treating since 18 January 2007. She had previously treated the plaintiff in August 2003 as a result of a lifting-related injury in May 2003. In August 2003, he was discharged with mild left-sided neck pain only.
40 The plaintiff was treated in January 2006 and again in July 2006, with mild left-sided neck and mild arm pain, which were resolved with short courses of physiotherapy treatment. By December 2007, the plaintiff had plateaued and was physically coping with most activities of daily living; the plan was that he be reviewed for a final time in January 2008.
41 In January 2008, the plaintiff attended complaining of an increase in his symptoms after being involved in an assault. His neck condition and left arm pain was significantly aggravated. He received more treatment than originally expected and Ms McDonald expected to discharge him in the coming months. The exacerbation settled over the next few months and he was treated until May 2008.
42 In June 2008, the plaintiff presented with a significant exacerbation of his symptoms for no apparent reason, for which he received treatment. It was Ms McDonald’s view that the plaintiff was likely to have ongoing neck pain and discomfort in the left upper quadrant for the foreseeable future, which she hoped would decrease in severity and frequency with time. She said the plaintiff could no longer perform his pre-injury work, but that he was fit for full-time sedentary work and he should avoid any overhead lifting greater than 10 kilograms or any sustained position of his neck.
Mr Kevin King
43 In December 2008, June 2010 and May 2012 the plaintiff was medically examined by Mr King, surgeon, at the request of the plaintiff’s solicitors. Mr King said that on the basis of the plaintiff’s history and clinical course, and his examination and findings, the injury to the plaintiff’s lower two cervical discs was disc protrusion and nerve root involvement, which occurred in May 2003. He described the trauma as being “superimposed upon mild pre-existing but symptomless spondylitic changes consistent with his age and heavy occupation”. The plaintiff made a complete clinical recovery.
44 He said the onset of symptoms in January 2007 must be regarded as a further injury to the same level of the cervical spine with further disc bulging and impingement on nerve roots.
45 Mr King said the plaintiff’s physiotherapy treatment in January and July 2006 was consistent with the history he obtained from the plaintiff. Mr King thought the treatment in 2006 was minimal in nature and consistent with the plaintiff’s lack of recollection of minor episodes. Mr King said the plaintiff is chronically disabled to a moderately severe degree by neck pain and left brachial neuralgia which is severe enough to prevent him returning to manual jobs. He said the plaintiff is restricted in the type of work he can perform. He said the plaintiff could work as an interpreter and more probably than not could manage longer hours, possibly full time interpreting work.
46 He accepted that the plaintiff could not perform work which involved lifting and straining. He said he was permanently unfit to return to heavy manual work involving lifting and straining with the arms or prolonged standing, particularly any bending.
Dr Robert Hjorth
47 In May 2012, the plaintiff was examined by Dr Hjorth, neurologist, at the request of the plaintiff’s solicitor. Dr Hjorth diagnosed radiculopathy secondary to cervical disc prolapse, which is common in people who do heavy manual work as performed by the plaintiff in January 2007. He said the plaintiff cannot perform manual work and work involving movement of the neck and spine. The plaintiff should avoid lifting and bending for more than a few seconds. Dr Hjorth said the plaintiff could work part-time, initially, and ultimately should be able to do full-time light work. He said at present he could work 10 to 15 hours a week.
Dr Graeme Mulvey
48 On 27 September 2011, Dr Mulvey, general practitioner, said that the plaintiff consulted him when his previous general practitioner retired. He said the plaintiff’s management is conservative with physiotherapy as required and pain-relieving medication and gentle exercise. He said in the last month, the plaintiff experienced an exacerbation of both his physical and psychological symptoms. His symptoms tend to be worse in the morning and tend to improve as the day proceeds. He said the plaintiff had suffered a serious work-related injury.
The Defendants’ Medical Evidence
49 The defendants also relied on the reports of Dr Michael Olenski, the plaintiff’s general practitioner, and Ms Virginia McDonald, physiotherapist, which were summarised above. In addition, the defendants included medical reports from Dr John Henderson, orthopaedic surgeon, in relation to the 2003 injury. As the reports of Dr Henderson are not current and do not relate to the present injury, I have not summarised them here.
Dr D McDonald – The Alfred Hospital
50 On 30 July 2008, Dr McDonald confirmed that the plaintiff was admitted to The Alfred Hospital on 29 December 2007 with injuries sustained in an alleged assault. His injuries consisted of tenderness in the neck with some tingling in the left hand. An MRI scan showed degenerative disease only. The plaintiff was discharged on 2 January 2008. His elbow injury did not require any follow-up and his facial fracture was monitored in the outpatient department. He attended at the facio-maxillary review clinic in January 2008. Conservative management was recommended and he was discharged from the clinic. He also attended the ophthalmology review clinic until May 2008.
Mr Clive Jones
51 In June 2008 and February 2009, the plaintiff was medically examined by Mr Jones, orthopaedic surgeon, at the request of the defendants’ insurer. In 2008, Mr Jones said the plaintiff’s current problem was a new disc injury superimposed on previous abnormalities. Work was a contributing factor. He thought that the assault was responsible for the plaintiff’s current need for treatment.
52 In February 2009, Mr Jones reported that the plaintiff’s right elbow was injured as a result of the assault, but not his neck and left shoulder.
53 In October 2008, it was Mr Jones’ view that the plaintiff was suffering from a condition of cervical disc degeneration, which was an age-related problem. He said the plaintiff’s employment with the first defendant caused aggravation of the underlying cervical disc and possibly a left shoulder bursitis problem.
54 Mr Jones said that the two MRI scans showed that the condition is essentially non-progressive. It was his view the aggravation resulted from the plaintiff’s employment. He said the plaintiff’s current condition was not work-related and the original injury in January 2007 would have been only temporary. He said the plaintiff had a reduced work capacity, in that he is not fit for pre-injury employment and it is unlikely that that will change. He said the plaintiff was fit for alternative suitable employment.
Dr Kevin J Fraser
55 In March 2009, the plaintiff was medically examined by Dr Fraser, rheumatologist, at the request of the defendants’ insurer. It was Dr Fraser’s view that the plaintiff had cervical spondylosis which was an age-related degenerative condition which was aggravated by his work injury in January 2007.
56 He said the plaintiff may have developed a left rotator cuff syndrome. If so, he said it had resolved completely. Dr Fraser said the plaintiff’s work-related aggravation had resolved and his current symptoms and signs are due to an underlying degenerative condition. As a result, he said there was some permanent incapacity for heavy manual work requiring lifting in excess of 10 kilograms, or any overhead or forceful use of the left arm. He said the plaintiff was fit for alternative employment. He accepted the plaintiff’s employment was a significant contributing factor to the aggravation. He described the plaintiff as genuine and providing his history in an honest and straightforward fashion.
Associate Professor Dinesh Barma
57 Associate Professor Barma reviewed the imaging relating to the plaintiff which included imaging from 2003 as well as imaging as a result of the current work-related injury. He said the plaintiff had a degenerative disc disease as early as 2003, which was seen on the initial CT and MRI scans. Subsequent multiple investigation of the cervical spine showed progression of the degenerative changes. The most recent MRI scan of the cervical spine dated 8 July 2010 showed mild left foraminal stenosis at C5-6. He said there was marked progression of the degenerative changes, C6-7, secondary to a large left foraminal disc protrusion which had increased in size over the course of the investigation since 2003. He said the CT scan showed further progression of end plate degenerative changes at C5-6 and C6-7.
58 It was his opinion that during the period from 2003 and 2007 when the injury occurred, there would have been a natural progression of the degenerative disc disease. The injury on 15 January 2007 would almost certainly have resulted in aggravation of the pre-existing degenerative disc disease. He said it was not possible to quantify this.
Mr Michael J Dooley
59 The plaintiff was medically examined by Mr Dooley, orthopaedic surgeon, in May 2012 at the request of the defendants’ solicitors. Mr Dooley said the plaintiff had age-related degenerative disc disease of the cervical spine. Mr Dooley said that the plaintiff aggravated his underlying degenerative disc disease at the C6-7 level in January 2007 and possibly sustained a small disc prolapse at this level.
60 Mr Dooley said he believed the plaintiff’s psychological reaction to injury and/or pain was contributing to his ongoing symptoms. He said the plaintiff’s radiological investigations are consistent with a man of the plaintiff’s age and work background. He said from an orthopaedic view only, he would expect the plaintiff to notice some ongoing intermittent neck pain and left upper limb pain.
61 He would not expect the plaintiff’s condition to deteriorate over and above the natural evolution of his degenerative disc disease. He said the aggravation of 2007 and, to a lesser degree, the aggravation of 2003, have resulted in some permanent effects. He said the plaintiff was capable of carrying out light duty work and clerical duties. He should avoid work which involves regular heavy lifting or activity above shoulder level. He said the plaintiff’s impairment will continue into the foreseeable future.
62 He said the plaintiff was physically capable of gradually increasing his hours to work full-time work. He said it was difficult to say whether he would be capable of working full-time regularly. In relation to the assault, he said that based on the general practitioner’s report of April 2008, it was possible that a more significant aggravation occurred than that described by the plaintiff.
Vocational Assessments
63 The plaintiff relied upon a vocational assessment report prepared by Ms Margaret Leitch, occupational therapist, in April 2012. Ms Leitch met with the plaintiff and was provided with the medical reports, radiological investigations and vocational assessments conducted by the defendants. It was Ms Leitch’s view that the plaintiff did not have the capacity to return to his pre-injury occupation as a warehouse supervisor/administrator. He could return to suitable employment for a maximum of 2 hours a day, five days per week taking into consideration the plaintiff’s capacity to sustain employment for a reasonable period of time and is based on the information included in the medical reports, her experience matching a worker’s capacity with the demands of work tasks and information provided by the plaintiff regarding his post-injury work history. She said graded hours of work arrangements are generally confined to occupational rehabilitation return to work programs and are therefore unlikely to be available when securing work with a new employer.
64 Ms Leitch said the plaintiff’s computer skills are at a very basic level. He has a slow typing speed of 18 words per minute. He does not touch-type – he uses a computer keyboard with one finger of each hand, using a “hunt and peck” technique. It was Ms Leitch’s view that the main occupations for which the plaintiff could be considered were: kitchen hand; sales assistant; order picker; forklift driver; store person; telemarketer; real estate agent’s representative; and para-professional interpreter.
65 Ms Leitch analysed the abovementioned occupations. She concluded that the plaintiff could work as a para-professional interpreter for a maximum of 2 hours a day, five days a week. She concluded that the plaintiff could not perform the other occupations from a physical perspective and provided reasons.
66 She also concluded that the provision of occupational rehabilitation and/or retraining in the future were unlikely to broaden the plaintiff’s vocational options and she provided her reasons.
67 Ms Leitch considered the vocational assessment for IPAR dated 24 May 2007 which identified suitable employment options of real estate sales person; call centre operator; park inspector; customer service officer; insurance and sales officer; other personal and household goods. She did not agree that those occupations were suitable and provided her reasons.
68 Ms Leitch considered the 130-week vocational assessment for IPAR dated 24 February 2009, which added two further suitable options, namely, para-professional Greek interpreter and supervisor and trainer of store persons. She considered the nature of supervisor and trainer of store persons and concluded that would not be suitable for the plaintiff, and provided her reasons. She also considered Mr Brazenor’s report dated 29 September 2010, where he suggested two occupations of security guard and leaflet distributor. Ms Leitch considered those occupations and provided her reasons as to why neither of those jobs were suitable.
69 The defendants relied upon the following vocational assessments:
§ IPAR Rehabilitation dated May 2007 and February 2009
§ NES Refresher Assessment Report and Plan dated January 2009
§ Recovre Report dated December 2011
70 In May 2007, IPAR provided a vocational assessment of the plaintiff after consulting with the plaintiff and a consultant psychologist, Mr David Younger. Contact was made with the plaintiff’s physiotherapist, but no contact was established with the treating general practitioner, although a report was available. IPAR identified employment options of real estate sales person; call centre worker; parking inspector; customer service officer and sales assistant.
71 In January 2007, the NES Refresher Assessment Report and Plan identified suitable employment options of para-professional Greek interpreter; supervisor and trainer of store persons; real estate representative; sales assistant/hardware sales.
72 In February 2009, IPAR identified the following employment options for the plaintiff based on his education, experience and transferable skills and limitations: customer service officer/insurance; sales assistant; para-professional Greek interpreter; call centre worker; parking inspector, supervisor and trainer of store persons.
73 In December 2011, Recovre said the options listed in February 2009 may be suitable, except for parking inspector, which may require bending at waist level. Five roles were identified by Recovre as being suitable for the plaintiff utilising his transferable skill set. A detailed assessment of each of the roles was conducted. Some of the roles accommodated part time work.
Video Surveillance
74 I was shown a video of the plaintiff which lasted 12 minutes. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when he is able to do more activities than on other days. I also accept that a video cannot show pain.
75 The film showed the plaintiff doing activities that he said he could perform. It showed him going to assignments as an interpreter, walking in the street and local shopping centre and driving his motor vehicle.
76 The Court was not provided with any evidence of how long the defendants surveilled the plaintiff. The times of the film were not continuous and there was no explanation of what was happening during the breaks. I accept that the video did not assist the defendants.
Credit of the Plaintiff
77 The plaintiff was consistent in reporting the injury and its causes to doctors whom he saw.
78 The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions. He willingly conceded that there were days when his neck is not as bad as other days. The plaintiff did not exaggerate the consequences of his injury. The video film did not show the plaintiff doing anything that he says he cannot do.
79 I note that a number of the doctors described the plaintiff as genuine. Dr Fraser said the plaintiff gave his history in an honest and straightforward fashion. Mr King described him as an impressively clear, detailed and articulate historian who is chronically disabled to a moderately severe degree by neck pain to prevent him returning to pre-injury employment.
80 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
Is the injury of January 2007 compensable?
81 Counsel for the defendants said the injury on 15 January 2007 was not conceded. Counsel relied upon a discussion between the plaintiff and Mr Gregory on the morning of 15 January 2007, when the plaintiff was informed that he was to be demoted to a storeman/driver. The plaintiff agreed there had been a discussion, that he was told to consider his position and he was disappointed about that. The plaintiff denied that he alleged an injury on 15 January 2007 and put in a claim form because he knew he was going to be demoted. The plaintiff agreed that the injuries he suffered in January 2007 were similar to the injuries he suffered in 2003.
82 The evidence was that the plaintiff consulted his general practitioner on 16 January 2007 complaining of the injuries that were incurred the previous day. There was no evidence that the plaintiff’s injury on 15 January 2007 did not occur. Mr Gregory was not called as a witness. All the medical witnesses accepted that the plaintiff suffered an injury on 15 January 2007 which was work-related. In addition, the evidence is that the first defendant paid compensation to the plaintiff which included weekly payments and an impairment benefit. In Ansett Australia Ltd v Taylor,[15] Ashley JA said that in cases where liability in relation to a claim was accepted, such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant in a particular case might be able to satisfactorily explain its conduct. In this case, no explanation was provided to the Court.
[15][2006] VSCA 171
83 Given all the evidence, I accept that the injuries to the plaintiff’s neck, left shoulder, left arm and left hand are work-related.
Nature of the 2007 Injury
84 All medical practitioners were aware that in 2003 the plaintiff had suffered an injury to the neck with symptoms in the left shoulder, arm and hand and was off work for four months before returning to light duties. In April 2004, he was symptom free.
85 All considered the relationship of the 2007 injury with the 2003 injury. Both Mr King and Mr Brazenor said the plaintiff had fully recovered from the 2003 injury. Mr Brazenor thought he would fully recover from the 2007 injury, yet said, as a result of his neck injuries, he would be forever restricted with the type of employment he could perform. Mr King said the January 2007 injury was a further injury to the same level of the cervical spine with further disc bulging and impingement on nerve roots. Mr Brazenor treated the plaintiff for both injuries and saw him on many occasions. Mr King only saw the plaintiff in relation to the 2007 injury, but on three occasions. Both doctors had reviewed the plaintiff recently. Ms McDonald said the plaintiff was discharged from treatment in August 2003 with mild left-sided neck pain only. In 2006, he received further treatment which resolved his neck pain completely. So Ms McDonald seems to agree with Mr Brazenor and Mr King.
86 Dr Olenski, the general practitioner, Mr Buzzard, surgeon, and Professor Barma, radiologist, accepted that the January 2007 injury would have resulted in an aggravation of the pre-existing degenerative disc disease. Professor Barma said it was not possible to quantify this.
87 Mr Jones, orthopaedic surgeon, Dr Fraser, rheumatologist, and Mr Dooley, orthopaedic surgeon, said the plaintiff was suffering from a condition of cervical disc degeneration which was age-related but that the plaintiff’s employment with the first defendant caused aggravation of the underlying cervical disc and possibly a left shoulder bursitis problem.
88 Mr Jones said the plaintiff’s condition in 2009 was not work-related and the original injury in January 2007 would have been only temporary. He did not review the plaintiff after 2009.
89 In 2009, Dr Fraser agreed with Mr Jones’ assessment in relation to the neck injury. Mr Dooley agreed with Mr Jones as to the aggravation of the plaintiff’s injury and said that he would not expect the plaintiff’s condition to deteriorate over and above the natural evolution of his degenerative disc disease, yet he accepted the aggravation of 2007 would have resulted in some permanent effects. Dr Fraser and Mr Dooley saw the plaintiff on one occasion and Mr Jones on two occasions. Only Mr Dooley’s report was current. Of the views expressed, I favour the view of Mr King and Mr Brazenor. Both doctors had reviewed the plaintiff on more than one occasion. Mr Brazenor had treated the plaintiff in respect to the 2003 and 2007 injury and both had reviewed the plaintiff recently. Accordingly, I accept that the plaintiff had recovered from the 2003 injury.
90 All doctors accepted the plaintiff could not return to his pre-injury employment. All doctors said he could work in a non-physical job.
91 Mr Brazenor said the plaintiff could work as an interpreter and did not impose any restrictions on that work. He said he could work selling real estate, as a security guard in a gallery or shopping centre and light retail sales. Mr Buzzard said the plaintiff was physically capable of modified duties in particular, as an interpreter and was capable of many other forms of similar work. Mr King said the plaintiff could work as an interpreter and, more probably than not, could manage longer hours, possibly full-time, interpreting work. Mr Hjorth said the plaintiff could work part-time initially, and ultimately should be able to do full-time light work. He said at present he could work 10 to 15 hours a week. Mr Jones and Dr Fraser said the plaintiff was fit for alternative suitable employment. Mr Dooley said the plaintiff was capable of carry out light duty work and clerical duties and that he was physically capable of graduating his hours to full-time work. He said it was difficult to say whether he would be capable of working full-time regularly.
92 The plaintiff was assaulted in December 2007. He was hospitalised for a short period and his neck pain was exacerbated. I accept medical views of the treaters of the time, namely the physiotherapist, Ms McDonald, and the general practitioner, who said the pain will settle with time. This was consistent with the plaintiff’s evidence.
93 Given the medical views expressed, I accept the view that the 2007 injury was a fresh injury at C4-5, a superimposed injury at C6-7 and also an aggravation of pre-existing degenerative changes.
94 In the case of an aggravation injury, the Court must consider what the evidence discloses as to the prior condition of the worker and determine whether the additional impairment resulting was serious. In Petkovski v Galletti,[16] the Full Court said that 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.
[16][1994] 1 VR 436
95 I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after January 2007 was serious. The evidence is that the plaintiff returned to heavy physical work in 2004 and was performing physical work, including working with the first defendant for eleven months immediately prior to the injury. The evidence was the plaintiff had consulted a physiotherapist in 2006 in January, June and July. Mr King was the only medical witness to address this. He thought the treatment in 2006 was minimal in nature and consistent with the plaintiff’s lack of recollection of minor episodes. His view was consistent with Ms McDonald’s evidence that the plaintiff received a short course of physiotherapy which resolved his neck and left arm pain. There was no other evidence that the plaintiff had received treatment in relation to his neck condition between 2003 and 2007. The evidence was that the plaintiff continued full-time employment working in physical employment.
96 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37)), a Court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based: see Barwon Spinners Pty Ltd v Podolak & Ors.[17]
[17][2005] VSCA 33
97 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and
(b) loss of earning capacity.
98 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[18] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[19] If a worker satisfies the tests laid by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[20]
[18]Section 134AB(38)(b) and (c)
[19]Section 134AB(38)(e), (f) and (g)
[20]Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170 [63]
99 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
Loss of Earning Capacity
100 The medical opinion was that the plaintiff could not return to his pre-injury employment.
101 The issue was whether the plaintiff has sustained a loss of earning capacity of 40 per cent or more at the date of hearing measured by reference to paragraph (f) of s.134AB(38) and whether, after the date of hearing, he will continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[21]
[21]Section 134AB(138)(e)(i) and (ii)
102 In addition, the plaintiff is required to satisfy the narrative test set out in sub‑s.138(b) and (c).
103 It was agreed between counsel that the plaintiff’s gross income at the time of the injury was $998. Sixty per cent of that figure is $599 per week.
104 The medical evidence was that the plaintiff could return to suitable employment. The plaintiff accepted that he retains a capacity to perform light work, such as work as an interpreter, on a part-time basis, but disputes that he has a capacity to perform full-time light work. The plaintiff said that he is only fit to perform part-time light work as an interpreter for a maximum of 10 hours per week. The plaintiff was supported in this position by the vocational assessment of Ms Leitch. She said the plaintiff could perform the occupation of para-professional interpreter for a maximum of 2 hours a day, five days a week.
105 The medical evidence did not support the plaintiff’s position that he can work a maximum of 10 hours per week as a para-professional interpreter. Mr Brazenor said he could work full-time as an interpreter. Mr King said it was more probable than not he could work full-time as an interpreter. Mr Hjorth said he could work part-time initially, 10 to 15 hours, and ultimately full-time. Mr Buzzard, Mr Jones and Dr Fraser said he could work in alternate duties but did not impose any restrictions on time. Mr Dooley said he could graduate his hours to work full-time.
106 Counsel for the defendants submitted that the plaintiff could work part-time up to 20 hours per week, which would provide an income of $980 which would exceed the 60 per cent figure of $599 per week.
107 I reject the submission of the plaintiff that he can only work 10 hours a week as an interpreter. The medical evidence did not support that submission. The plaintiff’s submission was supported by Ms Leitch. I did not accept her reasoning for the number of hours of work because I did not accept the information contained in the medical reports supported the plaintiff working only 10 hours per week. Further, she relied upon the evidence of the plaintiff regarding his post-injury work history. There was no evidence from the plaintiff that he had attempted to work for 20 hours per week and that affected his injury. Further, she based her assessment of 10 hours on the fact that graded hours of work arrangements are generally confined to occupational rehabilitation return to work programs and are therefore unlikely to be available when securing work with a new employer. The evidence was the plaintiff obtained his interpreting jobs from the internet and that he had rejected additional interpreting jobs that were available. There was no evidence that interpreters only work 40 hours per week. Accordingly, I reject the submission that the plaintiff can only work 10 hours per week.
108 Based on all the evidence, I accept the plaintiff has a capacity for alternative employment. All of the positions listed in the IPAR report would provide an income in excess of the 60 per cent figure.
109 Accordingly, the plaintiff does not satisfy the statutory test for loss of earning capacity.
Pain and Suffering
110 In accordance with Petkovski v Galletti, I am required to compare the plaintiff’s pre-injury impairment with the plaintiff’s post-injury impairment and determine whether the additional impairment caused by the aggravation bears consequences of sufficient magnitude (more than significant or marked, and at least very considerable) for the additional impairment to qualify as a “serious injury”.
111 The evidence of the plaintiff was that prior to his injury he was working in a physically active job. He had worked in warehouses for twenty six years. He worked at Coles Myer for ten years, and Kraft Foods for eleven years. He was working with Safeway when he injured his neck in 2003. He had been working at Cope Transport in Sunshine for fifteen months, which involved occasional heavy work. He then commenced work with the first defendant, which involved a lot of heavy lifting. He had been performing that work for eleven months without symptoms prior to his injury in 2007. All medical witnesses agreed that the plaintiff could not return to his pre-injury employment. Counsel for the plaintiff submitted that this consequence has resulted in a change to his life. His self-esteem and identity are significantly affected. His employment as a warehouse man is at an end. I accept that is a significant consequence.
112 Prior to his injury, the plaintiff played competitive soccer until 1997, and then played soccer socially. He cannot play soccer now because the running aggravates the pain in his neck. It is difficult for him to kick a soccer ball with his son. He no longer performs handyman work at home. In the past, he would clean the gutters. He takes Lyrica daily, as well as Nurofen or Panadol for relief on occasions. He takes Effexor daily for depression. He can no longer jog because the jarring of his body aggravates the pain in his neck, left shoulder and left arm. He can no longer lift heavy items as they aggravate the pain in his neck, left shoulder and left arm.
113 I am satisfied the plaintiff cannot return to his pre-injury employment, which was a job he enjoyed. He misses that work. He can no longer perform any physical jobs which involve repetitive heavy lifting and handling of goods. The plaintiff said he was active in terms of undertaking regular exercise, including running and playing social soccer. He can no longer engage in these activities. He has difficulty with any heavy lifting or activity at and above shoulder level. He experiences constant, though varied, pain.
114 I am satisfied that it is fair to describe the pain and suffering consequences as being more than significant or marked and properly regarded as considerable when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act. I am satisfied that the neck injury is permanent, given the evidence from all medical witnesses.
115 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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