Procida v Wesfarmers Limited

[2016] VCC 1188

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-03867

ADRIANO PROCIDA	Plaintiff
v
WESFARMERS LIMITED	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29 July and 3 August 2016
DATE OF JUDGMENT:	18 August 2016
CASE MAY BE CITED AS:	Procida v Wesfarmers Limited
MEDIUM NEUTRAL CITATION:	[2016] VCC 1188

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment of the lumbar spine – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Jessop v Herald & Weekly Times Ltd [2014] VCC 308; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie	Nowicki Carbone
For the Defendant	Mr S Smith	Thomson Geer

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 25 November 2013 (“the said date”).

2       The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function;”

3       The body function relied upon in this application is the lumbar spine.

4       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

6 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments … fairly described, [at the date of the hearing] “as being more than significant or marked, and as being at least very considerable”.

7       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

8       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

9       Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

10      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

11      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

12      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd & Anor[2] and Petkovski v Galletti[3] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

[3][1994] 1 VR 436

13      The plaintiff relied upon two affidavits and gave viva voce evidence.  He 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.

14      On 3 August 2016, the hearing resumed, with counsel for the plaintiff seeking to rely on the recent decision of the Court of Appeal in Richter v Driscoll.[4]  Short written submissions in reply were later provided by counsel for the defendant.

[4][2016] VSCA 142

15      Further oral submissions were made at my request as to the circumstances leading up to the plaintiff ceasing employment in October 2014, in light of the earlier submission by counsel for the defendant that the events of that date were unrelated to the plaintiff’s compensable injury.

The Plaintiff’s evidence

16      The plaintiff is presently aged thirty-three, having been born in January 1983.  He lives with his partner and three young children.

17      The plaintiff finished school during Year 12 and then did a Certificate II in Information Technology over six months in about 2000 or 2001. 

18      In about 2001, the plaintiff worked at Coles part time for about six months as a shelf filler and then worked full time in that role for approximately ten years.

19      The plaintiff trialled a panel beating apprenticeship for about a month in 2003-2004 and an electrical apprenticeship the following year.  He wanted to give himself a trade as he did not see working at Coles as a career, but did not enjoy that type of work as much as his duties at Coles. 

20      On about 29 August 2011, the plaintiff started work as a storeman with the IGA Distribution Centre “IGA” through an employment agency. He worked in that role for about six months.  He went to IGA because the pay was $32 an hour compared to $21 he was being paid at Coles.

21      As a result an injury at IGA in February 2012, the plaintiff was not offered work there again.  Once he obtained a medical clearance to return to normal work in June 2012, he was informed by IGA that he did not have a job to return to.

22      In November or December 2012, the plaintiff spent some time helping out a cousin who was a tiler, but he did not enjoy that type of work.

23      From 2010, the plaintiff had an ABN for an eBay trading business, which he operated with his wife.  It was largely a hobby.  He would buy a package of items such as video games, and then sell them individually in the hope of doubling his money.

24      In the financial year 2012-2013, the plaintiff tried to make that activity into a business, but was not able to make enough money to make ends meet with the overheads involved.[5] 

[5]The plaintiff’s 2012-2013 taxation return set out a $19,000 profit from this business.  There was a loss in the other years from 2010 to 2015, when trading ceased.

Medical history

25      The plaintiff deposed that in about February 2012, he hurt his back when he stepped off a pallet at work at IGA (“the 2012 injury”).

26      The plaintiff consulted his general practitioner, Dr Nassim, and was prescribed Voltaren and Diazepam for muscular pain in his lower back.  He required about three months on light duties and undertook regular physiotherapy with Mr Du for five months for facet-joint dysfunction in his lower back.

27      The plaintiff deposed he was able to make a full recovery and graduated from modified duties and returned to full-time work in or about June 2012.

28      In cross-examination, the plaintiff explained that he, in fact, was certified fit for full-time normal duties in June 2012 by the work doctor at Kinetic Health but was not offered any further work through his employment agency, Adecco, which did not want to find him another employer.[6]  He then thought that he could try to make a full-time living from the eBay business.[7]

[6]Transcript (“T”) 35

[7]T33

29      There was extensive cross-examination about the circumstances of the February 2012 injury and, also, the plaintiff’s previous history of back complaints.

30      The plaintiff denied he had longstanding problems with his lower back, dating back to at least 2000.[8] 

[8]T24, T41

31      The plaintiff was cross-examined about an attendance with Joel Rogerson, physiotherapist, on 21 January 2013.  The plaintiff agreed at that time, he had lower back pain most days, with only an occasional pain free day, as Mr Rogerson noted.[9]  This was not included in the plaintiff’s affidavit as he had forgotten this attendance.  He could not remember any other oversight in his affidavits.[10]

[9]T25

[10]T26

32      The plaintiff could not remember having worn a brace on his lower back prior to the said date but knew he had since.  He could have had strapping on his back at that earlier time.[11]

[11]T27

33      The plaintiff “partially” accepted that while his pain had improved by June 2012, it had returned the following month.  Around this time, he was trialling tiling work which was quite heavy.  While he dad deposed he did tiling work in November-December 2012, the plaintiff explained that his “timeline” was not very good.[12] 

[12]T29

34      The plaintiff agreed as Mr Rogerson noted on 6 December 2012, that he was using a lumbar support on a chair at home to deal with back pain and for support.  He agreed he had an x-ray at that time and that problems with his back were then aggravated by sitting and bending.[13] 

[13]T31

35      The plaintiff agreed he then had constant mild pain, as Mr Rogerson noted.  The pain would become severe if he had to sit or bend forward.  He did not know whether his pain was causing him significant problems, as he could not remember too much about the injury at that time during which he was working full time on eBay.[14] 

[14]T32

36      The plaintiff could recall being prescribed Brufen but not Naprosyn by Dr Naidoo in December 2012.[15] 

[15]T35

37      After the full clearance in June 2012, the plaintiff did not remember too much about seeing other doctors.  He had some back pain at the end of the year and did not know if that was related to the February 2012 injury.[16]

[16]T86

38      The plaintiff could not say his back pain in July 2012 was a flare up of the February 2012 injury.  He did not know if it was the same injury.  It could have been “just something different”.[17]

[17]T30

39      The plaintiff then agreed that from July 2012 to at least January 2013, he was experiencing back pain, if not identical, similar to what he had experienced after the February 2012 injury.[18] 

[18]T38

40      The plaintiff then went on to say, however, when it was suggested that the pain he was describing in 2012 was exactly what he described in his March 2015 affidavit, there was a difference between constant aching pain and constant mild pain in 2012.[19]  The pain he had following the February 2012 incident was totally different.[20]

[19]T38

[20]T39

41      The plaintiff then said he could not remember the state of his back in December 2012 and that he could not say if it was different to his pain in March 2015.  He could not remember.[21]

[21]T39

42      The plaintiff did not have back problems before 2012.[22]

[22]T42

43      The plaintiff could not remember attending Centreway Medical Centre in East Keilor in 2002 and an x-ray being organised of his lumbar spine at that time.  It did not sound right to him that he was then referred to Western General.[23]

[23]T44

44      While he did not disagree that he had a history of two years’ lower back pain at that stage, the plaintiff did not recall.  He had pain in his right shoulder blade, which was chronic over a couple of years, but he did not remember any problems with his lower back.[24]  He had chronic pain, but not in his lower back in 2005.[25]

[24]T44

[25]T45

45      The plaintiff was cross-examined about a WorkCover claim in 2008, when working for Coles.  He confirmed he thought his “timelines” were not great.  He then agreed that he hurt himself when he first worked at Coles, injuring his right shoulder blade.  That injury was located on the tendon that is in his back, not his lower back.[26]

[26]T46

46      The plaintiff’s memory was not jogged at all when read the entries in his clinical notes in 2008 about a work related back injury.[27]  Around 2005, maybe for a couple of years, it was a very difficult time for him with family issues, including his mother’s death.[28]

[27]T46

[28]T47

47      The plaintiff agreed, when shown the clinical notes, he was prescribed Voltaren and was sent for physiotherapy at that time.  He accepted the records showed many years before anything happened in November 2013, he had back pain on and off.[29]

[29]T48

Work with the Defendant

48      Before the said date, the plaintiff was employed by the defendant as a storeman and retail assistant, full time for about three to four months, in the Altona store.  Shifts usually commenced at three o’clock and finished at midnight.  Working 32 hours a week, the plaintiff was earning about $850 gross per week.

49      The plaintiff obtained this job through his connections and he enjoyed working as a storeman very much.

50      When the plaintiff started work with the defendant in 2013, his back was fine.  There were no restrictions.  He was doing full duties and worked whatever hours he was required to do.[30]

[30]T87

51      The store was very busy and that the plaintiff had a heavy workload, carrying and lifting boxes of fruit and vegetables. His normal duties included breaking up deliveries, stacking shelves and cutting fruit and vegetables.  Breaking deliveries involved getting loads off a pallet and putting foodstuffs on the shelves, in the cool room and then the store.  There was also a lot of cleaning work.[31]

[31]T60

52      On the said date, while lifting pallets of bananas weighing approximately 13 kilograms, the plaintiff felt a sharp pain in his lower back (“the incident”).

53      The plaintiff was in severe pain the following day and reported the incident.  He then had about two weeks off work. 

54      Initially, the plaintiff consulted the defendant’s doctor, who prescribed Voltaren Rapid and Panadeine and referred him for physiotherapy.

55      On 27 November 2013, the plaintiff consulted his general practitioner, Dr Gilbourne, who advised him to continue with medication and commence physiotherapy treatment, which the plaintiff undertook in December 2013 at Altona Meadows. He was also provided with a home exercise program and advised to remain on a 5-kilogram lifting limit at work.

56      On or about 1 December 2013, the plaintiff returned to light duties involving no lifting of more than 5 kilograms, no standing for long periods and no bending.  He went back on his base contract, which was around 12 to 20 hours a week light duties.[32]

[32]T61

57      On his return to light duties, the plaintiff felt unsupported, anxious and uneasy about going to work.  He was belittled and harassed.  He was given heavy and strenuous tasks and was often left to do heavy lifting, as his manager had no concern for his injury.

58      The large workload caused the plaintiff’s back to feel very sore at the end of the day and he felt as though he could not progress with his return to work plan because he was being pushed above his limit.  He was also being harassed by a fellow employee.

59      The plaintiff deposed that he suffered from pain on a daily basis and could not cope with his workload, as it required a lot of bending and lifting.  In around early October 2014, he experienced a flare up in his lower back due the increased work duties.  The pain became too intense and he was forced to cease work.

60      In his affidavit, the plaintiff detailed attendances with Dr Gilbourne from 2 December 2013 until being certified totally unfit for work by him on 27 October 2014.

61      On 25 February, the plaintiff told Dr Gilbourne his condition had not improved and he was still in pain every day.

62      On or about 14 March 2014, the plaintiff told Dr Gilbourne his back would ache after lifting 5-kilogram pallets of fruit.  He felt depressed being unable to work at his pre injury level and he did not feel supported at work and by doing light duties he was putting pressure on fellow workers.

63      On 28 March 2014, the plaintiff complained of having severe pain in his back and he had yet to experience any improvement.

64      On or about 4 April 2014, the plaintiff told Dr Gilbourne his back was extremely sore each day after work.  His sitting tolerance was 15 minutes.  He was prescribed Mobic and an MRI scan was arranged.

65      On 11 April 2014, the plaintiff told Dr Gilbourne he was not improving and was struggling to do light duties but the defendant wanted him to increase his hours.

66      On 30 April 2014, the plaintiff told Dr Gilbourne he was being harassed by managers at work because he was on light duties.

67      The plaintiff deposed that on about 20 May 2014, he was permitted to lift up to 8 kilograms and his hours were increased to approximately 20 to 25 per week. He explained that physiotherapy had slightly improved his condition and he felt he could increase weight bearing.

68      The plaintiff agreed with Dr Gilbourne’s note that his pain was not as bad as before and he wanted to increase his lifting limit to 8 kilograms.[33]

[33]T62

69      On 1 July 2014, the plaintiff complained that his back pain had flared up again.

70      On 15 July 2014, the plaintiff complained to Dr Gilbourne of intense lower back pain and struggling to do his duties at work.

71      In August 2014, the plaintiff had six weeks off work for personal leave after his son was born and on 15 September 2014, returned to modified duties.

72      On or about 12 September 2014, the plaintiff advised Dr Gilbourne that despite time off work for the birth of his son, his back was still in aching pain. The plaintiff had returned to work and was wearing a back brace.

73      On 6 October 2014, the plaintiff told Dr Gilbourne he had a new manager who had piled up work for him and he was required to engage in heavy lifting and bending, which had worsened his condition.  He explained his back felt like it was “holding on by a thread ready to snap” and he was taking Voltaren and Panadol for the pain.

74      The plaintiff deposed that on or about 9 October 2014, his shifts were reduced to three and four hours, at his doctor’s request, because the work was putting too much strain on his back, and on or about 19 October 2014, he ceased work due to the pain in his lower back.

75      When the plaintiff saw Dr Gilbourne on 9 October 2014, he explained he could not sleep the previous night due to intense pain in his back, especially the lower back, and did not feel capable to continue working five shifts each week:

“?change w/c cert in future to reflect 3 starts

…

3 starts a week but ?push to 5 to 8 hours a day to each of these 3 days.”[34]

[34]Defendant’s Court Book (“DCB”) 70

76      Celebrex and Panadol Osteo were prescribed.

77      On attendance on 20 October 2014, the plaintiff complained of constant severe pain.  He was having difficulty walking and moving around.  He was prescribed Tramadol.

78      The note of that attendance read:

“On Friday night felt more pain in his lumbar spine and worsened on Saturday am. Is having trouble getting around/ambulating. In constant pain. Just came on Friday without warning. Took panadol osteo and celebrex and this was helping until this happened but now is a lot worse.”[35]

[35]DCB 70

79      The plaintiff agreed that there was a worsening of his back, as noted by Dr Gilbourne, that just came on without warning and the note did not suggest they had discussed it having had anything to do with work.[36]

[36]T67

80      The plaintiff did not refer to the attendance on 24 October Dr Gilbourne when he noted – “is better Tramadol is helping.  Can walk more freely today.”

81      On the following attendance on 27 October 2014, the plaintiff told Dr Gilbourne he could not cope at work with the pain and he was given a certificate to cease work.

82      Dr Gilbourne noted, on that date:

“Examined lower back and unchanged.  

He feels he cannot work currently.”[37] 

[37]DCB 69

83      The plaintiff became somewhat confused when cross-examined about his condition leading up to late October 2014 when he ceased work. 

84      The plaintiff denied he made a pretty good recovery from the incident injury, acknowledging that he had made “some improvements”.  There was some slight improvement and there was a flare up in October 2014, and his back had never improved from then.  The pain came on suddenly and there was definitely nothing major that brought it on.  He disagreed he had made a very good symptomatic improvement until October 2014.[38]

[38]T49

85      The plaintiff could not remember what he told Dr Davison on the examination three weeks after the incident but acknowledged what was recorded would be true.  However, the plaintiff denied there were then no restrictions in his ability to stand at that time.[39]  He could remember seeing Dr Davison but did not think it was so close to the injury date.[40] 

[39]T50

[40]T51

86      During cross-examination on this issue, the plaintiff had to take a break from the witness box as he became upset.[41]

[41]T53

87      The plaintiff agreed there was a slight improvement in his back condition before October 2014.  He started to feel better during the year and spoke with his physiotherapist.  They decided to trial an increase in weight restrictions from 5 to 8 kilograms, but that situation did not last long.[42]

[42]T60

88      The plaintiff agreed with Dr Davison’s description that, as at May 2014, he was working 30 hours a week and doing regular duties without heavy lifting, with a 5-kilogram lifting limit.[43]

[43]T62

89      The plaintiff agreed, as Dr Davison reported, that there was a 75 per cent improvement and his overall recovery was at that level.[44]  He agreed with the description of his level of pain to Dr Davison at that time.  He had a small period when he was feeling better. The plaintiff then said he could not remember saying he had recovered about 75 per cent.[45] 

[44]T63

[45]T64

90      The plaintiff wanted to have the lifting restriction relaxed and he was feeling better and very eager to get to full duties.[46]  He did not know exactly when the 8-kilogram limit commenced; however, with this limit, he was still unable to lift a lot of items and could not perform a range of duties that were part of his normal work.[47]

[46]T64

[47]T65, T84 and T86

91      The plaintiff agreed that he told Dr Davison in September 2015 that his condition had not changed to any substantial degree since the September 2014 examination.  Having done the pain management program, there was not any less pain but he felt a bit stronger.[48] 

[48]T67

92      When examined in October 2015, the plaintiff agreed that he told Professor Dohrmann that his level of lower back pain had not changed over the last two-year period, with less severe and less frequent flare ups, but when they came on, his pain was worse.[49]

[49]T68

93      The plaintiff then said that his condition has been different since the flare up in October 2014.  Over 2014, he did get a little better and was eager to get back to full duties and discussed this with his physiotherapist.  His son was born, he had time off, then went back to work and then had a really big flare up in October.  Since then, that had been his “baseline”.  He could have given the history to Professor Dohrmann, because he might have been feeling like that at the time.[50]

[50]T78

Back condition as of April 2015

94      The plaintiff deposed to having constant aching pain in his back, particularly the lower back, since the incident.  On some days, the pain was more severe and his back felt like it was seizing up.

95      The plaintiff had problems driving or sitting as a passenger in a car for long periods and needed to get out and stretch.  He had difficulty bending and experienced pain when putting his socks on.

96      Despite medication, the plaintiff struggled to fall asleep because of his back pain and struggled to sleep in bed, and had to sleep on the couch.  Since the incident, his back pain had caused problems with intimate relations with his wife.

97      Since the incident, the plaintiff had difficulty performing household tasks and helping his wife with the young children.  He struggled to engage in hobbies he used to enjoy, such as building computers, which he had to give up.  He was restricted in his ability to do gardening or work in the vegetable patch.

98      The plaintiff no longer had the same level of enjoyment in photography, he struggled to play kick-to-kick with his son and had difficulty bending down to lift and play with his children. 

99      The plaintiff felt disheartened and apprehensive about returning to work because he was harassed by his colleagues and was anxious about his future because he did not know when he would be able to return to work.

100     The plaintiff attended a gym twice a week, connected with his physiotherapy exercise session and frequently walked for five to ten minutes during the day, up to half-an-hour, to exercise, but was limited by pain and cautious to avoid flare ups.

101     In his 2016 affidavit, the plaintiff deposed that his attendance at Carlton AFL games is no longer as regular as before the incident as he has problems standing.  On a recent holiday to Phillip Island, he was significantly restricted in his level of activities with his children because of his back pain.

102     The plaintiff was not cross-examined in regard to his complaints of pain and disability.  Cross-examination essentially focused on his ability to retrain and undertake a number of jobs suggested by vocational experts relied upon by the defendant.

Employment future

103     As of 16 June 2016, the plaintiff was attending Wyndham Community Learning Centre one day a week for three hours, to give him increased digital literacy in Microsoft. He hoped, with increased computer skills, he may be able to commence a Certificate III in Business Administration.

104     The plaintiff was unable to commence the Certificate III as there were insufficient numbers for the course to take place.  Instead, he did the digital literacy course.  He will do the Certificate III if a place becomes available.[51]

[51]T74

105     The plaintiff was uncertain as to what, if any employment, he might obtain if he completed the Certificate III course.  Given his present level of problems with his lower back and his current skills and training, he did not believe there was really any work he could do on a regular part-time or full-time basis.

106     The plaintiff agreed he was able to pick up new skills on a computer and had done so from time to time.  He had proficiency in emails, internet, Twitter, Microsoft Word, Excel and Outlook.[52]  He could not say how well he would be able to use a new computer program that he had not seen before.[53]  

[52]T69

[53]T70

107     As a result of his back injury, the plaintiff had largely given up the hobby business and cancelled the ABN number in February 2015. Sitting at the computer aggravated his lower back, so it was now something he avoided. 

108     The plaintiff’s resume was “dolled up” a little bit by IPAR.[54]

[54]T71

109     The plaintiff could not recall applying to the Audio Clinic for a position as a reception service officer in July 2015.  He had applied for a lot of jobs online.[55]

[55]T70

110     The plaintiff agreed that in that job application, he set out he had excellent communications skills, face to face and via the phone, a strong attention to detail, an ability to deal with people at all levels and a sound positive attitude.  These were all attributes he possessed.  He was suited to that job but he did not have the qualifications such as a Certificate III to do that job.[56]

[56]T74

111     The plaintiff did not think he would be physically able to do that job full time.[57]  His problems with prolonged sitting would not be addressed by just getting up and having a coffee or a break.  It would be difficult for him to find an employer who would allow him the flexibility to stand and walk every fifteen minutes to half-an-hour. 

[57]T75

112     If he found such an employer, and he could do the Certificate III course, the plaintiff probably could see himself doing that work full time under the right physical conditions.  He would have to have an employer who was very flexible and it would depend on how severe his pain was, because just getting up and having a stretch and a walk at times might not be able to fix his problem.  He would need to work in that environment to be able to judge whether he could do the job.[58]

[58]T76

113     The plaintiff thought he would be able to work as a front desk concierge when it was suggested that job involved sitting at a desk watching CCTV cameras and standing and sitting at will.  He then said he was not sure if he could do it full time but that he would trial it before he knew whether he could cope or not.[59] The plaintiff made a similar comment as to his ability to work full time as a security officer or an information officer at somewhere like Highpoint.[60]

[59]T79

[60]T80

114     The plaintiff did not know what the role of weighbridge operator involved.[61]

[61]T80

115     The jobs the plaintiff applied for were usually in office administration or receptionist types job that IPAR suggested to him.[62]  He agreed he would try to do these jobs if he was successful on interview.  He had been told by IPAR and the defendant to apply for ten jobs a fortnight.  He last applied for a job earlier this year in office administration-type work.[63]  The majority of jobs he applied for were part time work in office administration at entry level.[64]

[62]T80

[63]T80

[64]T83

Treatment

116     I about December 2013, the plaintiff commenced physiotherapy with Ms Erm.

117     There was an MRI scan in April 2014 and hydrotherapy was recommended later that month.

118     On or about 3 July 2014, the plaintiff consulted Mr Wallace on referral from Dr Gilbourne. He advised that the lumbar MRI revealed sic injuries that were not attributable to normal wear and tear and advised the plaintiff to wear a brace as well as a Thermoskin in winter.

119     In August 2014, the plaintiff completed a three-month gym program and was taking Voltaren weekly and going for regular walks.

120     The plaintiff commenced physiotherapy organised by Dr Tan on 30 October 2014; however, that treatment was not effective, and he had hydrotherapy and was referred back to Mr Wallace, whom he saw in November 2014.

121     Mr Wallace organised a repeat MRI scan and recommended the use of a TENS machine.  He also referred the plaintiff to a neurosurgeon, Mr Lo, whom the plaintiff attended in February 2015.  He suggested further investigations and that the plaintiff may require surgery.

122     Further physiotherapy treatment was undertaken with Ms Sarah Tan in November 2014.

123     On or about 6 February 2015, the plaintiff consulted neurosurgeon Mr Lo who advised further investigations.

124     In March 2015, the plaintiff undertook a pain management course with Advanced Health Care on referral from Mr Lo.  He learnt a lot from the course but it was not helpful for his pain.[65]

[65]T49

125     With the help of Dr Ong, pain specialist, whom the plaintiff continues to see, the plaintiff is learning to cope with gradually reducing medication.  He presently takes two Panadol Osteo tablets twice a day, or three times a day on a bad day.  He stopped taking Celebrex last year.  He takes Cymbalta in the morning, which helps with his mood and pain relief.  He also takes Gabapentin for pain relief, now reduced to 600 milligrams in the morning and night.  He stopped taking Baclofen late last year, but continues Endep, 25 milligrams, for pain and helping him sleep.  He does not see drugs as a long-term solution and does not like to take them.

126     The plaintiff continues to see Dr Gilbourne every month for certificates and general check ups.

127     The defendant purchased a new mattress for the plaintiff earlier this year and whilst he has been able to resume sleeping with his wife, he still has pain and difficulties doing so.

The Plaintiff’s medical evidence

Treaters

128     Dr Naidoo from Altona Super Clinic reported in October 2015, detailing the plaintiff’s attendances for back pain in 2012.  She noted the plaintiff was cleared for full-time normal duties following an earlier back injury and that he was coping well.

129     When seen on 4 September 2012, the plaintiff’s back was not as severe as his original injury and there was no neurological deficit and he was treated with Brufen. 

130     Dr Naidoo noted that on the 5 December 2012 examination, the plaintiff still complained of pain.  A lumbar spine x-ray was arranged and Naprosyn was prescribed. 

131     On review on 8 December 2012, the plaintiff’s x-rays were normal and he was referred to Joel Rogerson for physiotherapy.

132     The plaintiff was seen again for back pain on 26 November 2013 and prescribed Naprosyn and was subsequently reviewed on 22 February 2014 for back pain.

133     General practitioner, Dr Gilbourne, first saw the plaintiff on 22 November 2013. 

134     On 22 April 2014, Dr Gilbourne, wrote to physiotherapist, Ms Erm, seeking further physiotherapy options. She noted that the plaintiff reported he was not really improving and his back pain was worsening.

135     When Dr Gilbourne wrote to Mr Wallace in April 2014, he advised the plaintiff had trouble since the incident.  There had been a previous claim in February 2012, but the plaintiff’s back came good after a few months and he had no problems in the interim.  He noted that the plaintiff had not improved much overall and he organised an MRI scan.

136     Dr Gilbourne advised Mr Wallace by letter dated 17 November 2014 that the plaintiff had been struggling for the last number of months, with no real improvement, and had recently worsened.  His back felt weak and felt like it would break. 

137     In October 2015, Dr Gilbourne reported to the plaintiff’s solicitors. 

138     Dr Gilbourne had a history the plaintiff had been on light duties until June 2012, following a previous lower back claim (2011) and then had no back issues after that until the incident injury.

139     When seen in December 2013, Dr Gilbourne advised continuing physiotherapy and four hours a day, light duties, with no bending, lifting, prolonged sitting or standing.  From 9 December 2013, he increased the plaintiff’s work hours to six a day and permitted him to lift 5 kilograms. 

140     When seen on 4 April 2014, the plaintiff’s improvement had stalled and on 30 April 2014, he was referred to Mr Wallace.  WorkCover certificates continued unchanged.  Subsequently, the plaintiff was feeling a bit better and wanted to increase his work capacity restrictions.  The lifting limit was increased to 8 kilograms.

141     When seen on 6 October 2014, the plaintiff’s back was worse again. He advised he was being asked to do more at work, and his workload had been increased by the new manager.  The plaintiff was really struggling and he had been asked to lift boxes off the floor in the previous week, but that had really hurt his back.

142     The plaintiff’s pain was worse later that month and he was certified unfit for work and Tramadol was added and the plaintiff was again referred to Mr Wallace.

143     WorkCover certificates continued and the plaintiff was unable to work. He was referred to Mr Lo in February 2015.  The plaintiff then underwent a disciplinary pain management assessment and continued on WorkCover certificates and was not able to work.

144     Following the pain management program, Dr Gilbourne noted there was significant progress with improved activity limitation, improved psychological profile and improved management of medication and pain control.

145     In September and October 2015, the plaintiff was given further WorkCover certificates and Dr Gilbourne then thought he could then work two hours, two days a week, in office-based duties, with no repetitive lifting and no heavy lifting.

146     Dr Gilbourne considered the prognosis was uncertain and that the plaintiff was incapacitated for pre-injury work, and fit for restricted work as per his recent WorkCover certificate.  If the plaintiff improved in the future, he would increase the duties, but thought the prognosis was guarded at the present time.

147     In January 2014, Ms Erm, physiotherapist, noted the plaintiff reported he was tolerating his modified duties well, that his lumbar flexion was limited and that he then would need to stay on a 5-kilogram lifting restriction. 

148     Mr David Wallace, neurosurgeon, first saw the plaintiff on 3 July 2014.

149     The plaintiff told Mr Wallace he had previously hurt his back when he stepped off a tugger, feeling instant pain in the right side of his back.  He was off work for two to three months, then returned to light duties through a job agency and then went to the warehouse where he did paperwork only.

150     On initial examination, there was no neurological abnormality.  Mr Wallace thought the April 2014 MRI scan showed two injured discs at L3-4 and L4-5, indicative of disc injury.  However, he did not think it was a surgical proposition and suggested conservative treatment.

151     On review in November 2014, the plaintiff reported that, if anything, he was getting worse, not better, and had not worked for the last four weeks.

152     Following that examination, Mr Wallace thought the plaintiff had a genuine intrinsic disc abnormality and did feel that there was a surgical option that would be available.  He suggested a further MRI scan on 28 November 2014.

153     Mr Wallace then thought the plaintiff was incapacitated for pre-injury work.  He was limited in his ability to lift weights and do bending and twisting of the lumbar spine.

154     Rachel Heerey from Symmetry Physiotherapy in Altona Meadows, treated the plaintiff from 29 November 2013 until 8 August 2014.  She thought he was incapacitated for pre-injury employment due to his back injury. 

155     Following the completion of the pain management program, Ms Heerey advised that the plaintiff would benefit from a gym membership.  She agreed with the general practitioner’s views as to the capacity for employment.

156     Dr Ong, the plaintiff’s pain management specialist, first saw the plaintiff in March 2015, when he recommended referral to a multidisciplinary pain management program.

157     In terms of past medical history, Dr Ong noted lower back strain with facet-joint arthropathy in 2012 from a work injury, but it self resolved within three months with physiotherapy.

158     Ten months post discharge from the pain management program (June 2016), Dr Ong noted that the plaintiff continued to have pain and pain-related issues, and saw him only for medication and major pain-related concerns.

159     The presenting complaint was lower back pain and intermittent bilateral posterior hamstring radiculopathy.

160     Following the pain management program in July 2015, Dr Ong noted the plaintiff had a significant flare up in January 2016 and was sent for a further MRI scan, which showed no new concerns and had settled with medication adjustment.

161     Dr Ong noted, on examination, the plaintiff’s sitting and standing tolerance was ten to twenty minutes.  Range of movement was slightly restricted in the lumbar spine. 

162     Dr Ong diagnosed chronic lower back Pain Syndrome from mainly musculoskeletal and some discogenic and mild limited neuropathic component, with probable additional facet-joint arthropathy. 

163     Dr Ong thought return to work was important and job modification may be necessary.  It was aimed that the plaintiff return to work and for him to have better pain management and better sleep. 

164     Dr Ong noted the plaintiff had made some limited gains during the pain management program, perhaps slightly, with better understanding of his Pain Syndrome and acceptance of his problems, which were likely to persist long term.

165     The January 2016 flare up had made the plaintiff panic a little, but the reassurance of a stable scan and improvement following the flare up with medication adjustments had helped.

166     Dr Ong thought the plaintiff’s physical condition had now largely stabilised.  His capacity remained limited and he could not return to pre-injury work due to the nature of that work and his ongoing injuries. 

167     Dr Ong considered that the plaintiff could currently work only office-based or sedentary-type duties, lifting less than 7.5 kilograms, no repetitive duties, no prolonged postures and no heavy manual work.  Dr Ong thought the plaintiff must take breaks, and pace and rotate duties.  His maximum work hours were three to four days a week, four to six hours per day, in sedentary roles.  This was both from a psychological and physical injury standpoint alone, or in combination. 

168     When last seen by Dr Ong, the plaintiff was still trying to look for alternative long-term duties, but had not been successful.  Realistically, in the open market, given the plaintiff’s conditions and limitations and level of specialist training or experience, Dr Ong thought vocational re-deployment would be difficult.  Nevertheless, he thought it important the plaintiff remain active and continue to seek out long-term work to enable him to move on with his life and stay useful, and with less focus on his Pain Syndrome. 

169     Dr Ong considered that the plaintiff’s prognosis remained guarded, but it was likely he would suffer persistent pain symptoms and limited capacity for the foreseeable future.

Investigations

170     Dr Gilbourne organised an MRI scan of the plaintiff’s lumbar spine in April 2014.  It was reported there were small non compressive disc protrusions seen at L3‑4 and L4-5 and there was some mild L5-S1 facet joint degeneration. 

171     An MRI scan of the plaintiff’s lumbar spine organised by Dr Lo in February 2015 was reported to show normal vertebral body alignment and height in the erect position.  There was a good range of movement between flexion and extension, with no signs of instability.

172     Dr Ong organised an MRI scan of the lumbar spine on 11 February 2016.  It was reported there were small disc protrusions, as described, at L3-4, without neural compression.

Medico-legal examiners

173     Professor Peter Dohrmann, neurosurgeon, examined the plaintiff on 29 October 2015.

174     The plaintiff said he had fully recovered from the February 2012 injury after three months, during which time he was off work for a short period before working most of the three months on light duties.  He was cleared to return to unrestricted duties, but told there was no work available.

175     This episode of pain was treated predominantly with weekly physiotherapy and some medication, and at the end of the period, the plaintiff saw his general practitioner and the x-rays were done, and he was given the all clear.

176     The plaintiff reported that immediately prior to the incident date he had had no back pain and was performing his normal duties without restriction.

177     The plaintiff advised he had worked on modified duties from December 2013 until October 2014, but had persisting lower back pain.  He had progressed to a lifting limit of 8 kilograms, working part time when, in October 2014, he had a further exacerbation of lower back pain and ceased work at that time.

178     The plaintiff reported he had constant lower back pain since 2013, although with some fluctuations in severity.  He advised that, overall, his baseline of lower back pain had not changed over the two-year period, but that flare ups had become less frequent and less severe, particularly since the pain management program was completed.

179     The plaintiff complained of continuing to suffer from central lower back pain, which was localised and did not vary greatly in intensity.  It was normally about 7 out of 10 on the pain scale.

180     On examination, there was mild tenderness in the midline at L4-5, there was mild limitation of movement of the lumbosacral spine and there were no signs of functional overlay.

181     Professor Dohrmann concluded the plaintiff had suffered a soft tissue injury in the incident, best described as an aggravation of lumbar spondylosis, specifically involving disc lesions at L3-4 and L4-5.  He considered there was an organic basis for the condition, but noted it was likely there was a secondary psychological component, assessment of which was a matter for psychiatric expertise.

182     Professor Dohrmann thought the plaintiff did not have a capacity for full-time, unrestricted manual work or a capacity for pre-injury duties.  He thought he was fit for restricted work and would agree with the plaintiff’s general practitioner, that he was currently fit for non-physical work for two hours a day, two days a week, with a view for a possible gradual increase, subject to suitable duties being identified.

183     Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 15 October 2015.

184     The plaintiff told her of a past history of a back problem, with a period off work in 2012 and a return, thereafter, to lighter tasks or cleaning, and then normal duties.

185     The plaintiff told Dr Sutcliffe he experienced constant pain in the lower back centrally, and in the right hip and left hip region.  Pain was present in intensity to six to eight on a visual analogue scale out of ten.

186     On examination, there was bilateral straight leg raising to 50 degrees, no neurological abnormality and some restriction of lumbar movement.

187     From the history, examination, and perusal of documentation, Dr Sutcliffe believed the plaintiff sustained onset of disc arrangement at L3-4 and L4-5 with aggravation during the course of his employment with the defendant. 

188     Dr Sutcliffe considered the plaintiff had no capacity to undertake the occupation of retail assistant now or in the foreseeable future, and he had a limited capacity for work because of limitation in capacity for activities of sitting, standing and driving.  However, with completion of a course in business administration, with computer skills, she believed he had the capacity to undertake part-time administration-type of employment, where he had the capacity sit and stand.

189     In Dr Sutcliffe’s view, the plaintiff would more likely than not be able to perform limited hours of four to five hours, three to four days per week, in duties where he could sit and stand.  He could not be placed in an occupation where he was unable to vary his posture.  As he would need to move into new employment, she believed he could obtain this work only through personal connections or through disability networks, as his inability to undertake prolonged sitting or standing would not be acceptable to new employers. 

190     Dr Sutcliffe also thought the plaintiff had sustained substantial adverse impact on his capacity for social, domestic and leisure activities, and that such preclusions and restrictions were permanent.

Vocational evidence

191     Suzanne George, occupational therapist, carried out a vocational assessment of the plaintiff in February 2016.

192     Ms George concluded that the provision of occupational rehabilitation or retraining in the future was unlikely to lead to a suitable recognised occupation in the open labour market for the plaintiff.  She thought his maximal vocational potential would be in a part-time position, six hours per day, three alternate days a week, in supported employment where there was empathy for his injury and duties provided within his functional capacity.

193     While it may be assumed that a sit-to-stand workstation could be made available to the plaintiff, it was Ms George’s experience that such equipment was usually provided as part of an occupational rehabilitation program or in a supported environment.  She did not consider any of the suggested vocational options as being suitable for the plaintiff.

Claim documentation

194     The plaintiff’s Claim Form set out that as at the said date, he was working 30 to 35 hours, at $20 an hour, with usual pre-tax weekly earnings of $850 a week.

The Defendant’s medical evidence

The Plaintiff’s pre-incident back complaints

195     The plaintiff was referred by Dr Ortega of Centre One Medical Centre to the orthopaedic clinic at the Western General Hospital on 23 September 2002, complaining of lower back pain for three months. 

196     Mr Tsigaras, orthopaedic surgeon, responded by letter of 18 August 2003 to Dr Ortega.  He noted the plaintiff had attended on a number of occasions for his snapping right scapula.  Unfortunately, in July 2003, when pushing a heavy bale of cardboard at work, that pain recurred, and there was also associated lower back pain.

197     Dr Ortega noted findings on x-ray were no different to the previous investigation and he advised the plaintiff to adopt a conservative approach.

198     On a Western Health Discharge Summary of October 2005, it was noted the plaintiff’s principal diagnosis was myocarditis and pericarditis, and that the active comorbidities included chronic back pain.

Werribee Medical and Dental Centre notes

199     On 8 August 2008, it was noted the plaintiff was folding up crates at work when he strained his right lower back. 

200     There were a number of attendances later that month and a Return to Work Plan of 26 August 2008.  It was then noted the plaintiff’s back was getting better with return to work on light duties and he would probably be back to full duties in a week. 

201     On 4 September 2008, there was a note of “better”.  The lifting restriction was raised to 10 kilograms. 

202     On 15 September 2008, it was noted that the plaintiff was up and down.  On examination, there was a good range of movement apart from tight hamstrings.

203     As of 27 November 2008, it was noted the plaintiff

“Forgot to clearance[e] few months ago ful[l] RTWO [return to work] full duties – is fine now.  Certif[icate] issued.”[66]

[66]DCB 83

Altona Super Clinic, where he saw, principally, Dr Naidoo 

204     Dr Naidoo noted, on 27 September 2011:

“Had mild back pain at yesterday at work….”[67]

[67]DCB 122

205     The next reference to a back complaint was on 4 September 2012, when the plaintiff saw Dr Naidoo.  She noted the reason for contact was:

“[B]ackpain had a similar injury at work was receiving physio had clearance in June 2012 original injury 27/2/2012.”[68]

[68]DCB 119

206     Brufen was added.

207     On 5 December 2012, Dr Naidoo noted the reason for contact was:

“Backpain.

Old injury in February 2012 in June was cleared seen by Drs at Kinetic Health.

…

SLR 70 deg. Rest of exam NAD.”[69] 

[69]DCB 119

208     Management was x-ray and review.  Brufen was ceased and Naprosyn was added.

209     Dr Naidoo examined the plaintiff on 8 December 2012, where the results of the x-ray were explained.  The plaintiff then still complained of:

“… backpain ongoing. 

Walking ok.  Reflexes ok.  Gait slight limp.”[70]

[70]DCB 119

210     The plaintiff was counselled.

211     On 6 December 2012, the plaintiff was examined by physiotherapist, Joel Rogerson.  It was noted aggravating factors were sitting, bending and sitting in the car, and ease by walking.  The symptoms were:

“LBP [lower back pain] diffuse, constant mild P[ain], becomes severe with sitting, bending forward - since July as above. 

Nil P&N [pins and needles] to LLs [lower limbs].”[71] 

[71]DCB 118

212     Mr Rogerson noted the plaintiff did not return to work following initial injury and lower back pain, but “sits at the computer for some homework”.  On examination, straight leg raising was 40 degrees bilaterally and there was very minor lower back pain and very sore hamstrings.  It was noted there was McKenzie taping.  The plaintiff was given advice to take a break after sitting and to stand and walk.

213     On 10 December 2012, Mr Rogerson, noted, in “History”, that the plaintiff was previously on WorkCover from February to June for the same complaint:

“… LBP [lower back pain] - inflammation. 

…

stepped off 20cm stepped onto R)leg – LBP L] side.

had physio …

back improved in June - case closed. 

Pain returned July - denies injury and didn’t work.  Did some work on the computer at home - does have lumbar support.”[72]

[72]DCB 118

214     On 12 December 2012, Dr Naidoo noted the reason for contact was:

“backpain.  Se[e]ing physio

feeling bet[t]er continue with medication.”[73]

[73]DCB 117

215     The last entry at that practice before the incident was on 21 January 2013, when the plaintiff saw Mr Rogerson, who recorded lower back pain most days, occasionally pain-free day.  Lumbar support gave a little relief.  On examination, straight leg raising was 40 degrees bilaterally with tight hamstrings, and there were pins and needles.

216     There were subsequent attendances on 7 and 26 March, 2 May, 1 September, 22 September, 13 October 2013, the next mention of back pain being on 26 November 2013 to Dr Naidoo when Naprosyn was added.

217     On 22 February 2014, Dr Njoo noted the plaintiff reported back pain for three months due to work and was under WorkCover and usually saw his general practitioner at Laverton Medical Centre.

218     The plaintiff attended doctors at Sonic Health Plus in Laverton North after the February 2012 injury.  Dr Lunz, at that surgery, expected the plaintiff to be fit for normal duties from 1 June 2012, according to a Certificate of Capacity of that date.

The Defendant’s medico-legal evidence

219     Dr Gary Davison, occupational physician, first saw the plaintiff on 17 December 2013, three weeks after the incident.

220     The plaintiff told him of a previous problem with his lower back while working for Adecco.  He had three months off work and never went back to the distribution centre.  He had physiotherapy for five months and had some investigations; however, eventually made a good recovery and he felt really good.

221     Dr Davison noted that the plaintiff reported an unrestricted standing and walking tolerance and there were then no specific restrictions as to driving and standing.

222     Dr Davison thought the plaintiff had suffered a low-back strain.  He had mildly restricted forward flexion but, otherwise, no other abnormalities were noted and there was no evidence of any localised tenderness on palpation.

223     Dr Davison noted there was a previous history of lower back pain approximately twenty one months ago, from which the plaintiff reportedly had a full recovery and this did not appear to be recurrent.

224     Dr Davison thought the plaintiff had made a partial recovery and would expect he would be capable of resuming pre-injury duties within two weeks, with restrictions as to posture, bending and a 10-kilogram manual handling limit.

225     There was a re-examination on 16 May 2014 to review the work relatedness, current treatment and current work capacity.

226     Dr Davison’s diagnosis remained that of a lower back strain.  Mild disc bulging on MRI scan was, in his opinion, of no clinical significance.  He noted the plaintiff's condition fluctuated and it could take up to a year for a back strain to resolve with a change in management.  He thought the ongoing symptoms related to the lower back strain and 90 per cent of it would resolve within twelve months.  There was no evidence of functional overlay.

227     Dr Davison considered that the plaintiff was currently able to undertake modified pre-injury duties and hours of work.  He imposed a 10-kilogram lifting limit, varying posture and avoiding sustained bending and twisting.  He thought, in about six weeks from that time, the plaintiff could return to work in his pre-injury duties, noting he was then undertaking pre-injury hours of work and modified duties.

228     On re-examination on 11 September 2014, the plaintiff reported very little change since the last assessment and he “always got that painful niggle there”.

229     Dr Davison then thought there were some residual symptoms which were of fluctuating severity.  He would be hopeful of a resolution over the next three months; however, there was a risk of persistent symptoms indefinitely.  At that stage, he thought manual handling should not exceed 15 kilograms.

230     Dr Davison noted the Return to Work Plan indicated a fitness for work to undertake modified pre-injury duties in the fresh produce department, noting the lifting restrictions could be raised.

231     On further examination in August 2015, Dr Davison drew the plaintiff’s attention to his general practitioner’s notes of September to January 2013 and the x-ray of December 2012. 

232     The plaintiff reported his condition had not changed to any substantial degree.  Following a pain management course, there was not any less pain, but be felt a bit stronger.

233     Dr Davison noted that Dr Ong had certified the plaintiff fit to resume part-time hours on restricted duties, but the defendant reportedly could not identify any suitable employment for him.

234     The plaintiff complained of constant centrally located lower back pain, being very tight and squeezing in nature the aggravating factor.

235     On examination, the Waddell signs were negative.

236     Dr Davison thought the plaintiff’s condition had not changed since last seen and that he was likely to continue to report the presence of back pain indefinitely.

237     Dr Davison thought the plaintiff was capable of suitable duties, but not pre-injury duties.  He based his view on the plaintiff’s self-reported physical capacities and clinical examination findings.  He noted the plaintiff had chronic lower back pain with entrenched illness behaviour.

238     Dr Davison considered subject to compliance with the recommended physical restrictions, the employment options identified in March 2015 of data entry operator, product assembly, sales assistant, general and enquiry clerk, would be suitable.

239     Having been provided with the additional clinical notes, Dr Davison thought it clear the plaintiff did, in fact, have a significant pre-existing back injury, first experienced in September 2011 and then February 2012.  There were the five further presentations since the clearance in mid-2012 until early 2013, the most telling of which was 21 January 2013.

240     Dr Davison thought it reasonable to accept that the plaintiff did suffer an aggravation of pre-existing condition in the incident and that his symptoms had persisted.  His opinion had not altered and the history suggested the plaintiff suffered an aggravation of a pre-existing condition which remained symptomatic.

241     On re-examination on 9 June 2016, the plaintiff reported that his condition may be a little worse and he could not identify any particular factor that could be causing it.

242     The plaintiff reportedly continued to experience constant pain in the central lower back, which felt like he was being squeezed, and there was a tightness in his hamstrings and calves.

243     The plaintiff told Dr Davison during the day at home he spent time on the computer. He generally got up at about 7.30 and went to bed and around midnight. During the day, he lies down up to 5 times but does not sleep. He undertakes some housework in a self-paced manner and spends time on the computer. He also goes to hydrotherapy weekly and the gym twice a week.

244     Dr Davison noted the plaintiff’s condition had not changed substantially.  The range of active movement of the thoracolumbar spine remained approximately the same, and straight leg raising capacity had increased.  The plaintiff’s self-reported physical capacities were unaltered.

245     Dr Davison remained of the view the plaintiff was likely to continue to report the presence of lower back pain indefinitely.

246     Dr Davison thought the plaintiff did not have the capacity for pre-injury duties and given the history, was unlikely to regain such capacity.  He believed the plaintiff had a permanent incapacity for employment that required manual handling in the medium to heavy range.

247     Dr Davison provided a supplementary report, having received the occupational report from Ms George, the Health-e Workforce Solutions Vocational Assessment and Dr Sutcliffe’s report.

248     Dr Davison confirmed he thought subject to compliance with the recommended physical restrictions, the jobs of internal sales/support clerk, security/front desk concierge, car park attendant/customer service officer, weighbridge operator/recycle plant attendant and car rental officer would be suitable for the plaintiff.

249     Dr Davison was unable to say whether the plaintiff will develop a capacity for full-time duties in the near future; however, the plaintiff was only thirty-three and a graduated return to work would be appropriate.

250     Noting Dr Sutcliffe’s view that the plaintiff would be able to performed limited hours of 4.5 hours, three to four days a week, Dr Davison commented it would be prudent to commence the plaintiff at the rate of four hours and increase at a rate of 30 minutes per day per fortnight.  That would allow him to build stamina through a work hardening period.  The goal would be a resumption of full-time employment; however, that could not be guaranteed.

Vocational evidence

251     IPAR provided a vocational assessment report in March 2015.

252     Based on the plaintiff’s experience, training and presentation, IPAR identified the plaintiff was likely to possess the following transferable skills: computer skills, labouring skills, pick packing skills, shelf filling skills, time management skills, customer service and interpersonal skills.

253     Suggested employment options were data entry/word processing, product assembler (protected environments), sales assistant and enquiry clerk/customer service officer. 

254     Vocational occupational rehabilitation consultant, Nicholas Janides, completed a Health-e Workforce Solutions Vocational Assessment in June 2016.

255     Mr Janides identified vocational options for the plaintiff were:

·        Internal sales support clerk, $21 to $26 per hour, with recommended retraining, being a Certificate IV in Business Administration. 

·        Security front desk concierge hourly rates starting at $16.17 to $17.82.  Recommended retraining was a Certificate II and Certificate III in Security Operations. 

·        Car park attendant/customer service officer, where the median range was $52,000 and the senior salary $62,400.  No courses were recommended for that vocational option.

·        Weighbridge operator/recycle plant attendant.  On a casual basis at entry level, the pay was $18 to $22 per hour, with a full-time weekly wage between $730 to $860 per week, with no recommended retraining. 

·        Car rental officer, with an entry level salary of $42,565 and year four, $52,471.  No courses were recommended for that option. 

256     Mr Janides concluded that the plaintiff possessed some excellent experience in direct customer service and this skill was certainly transferable to alternative industries, where he could consolidate all this experience to more sedentary opportunities.

257     As it was reported the plaintiff suffered from a back condition, Mr Janides noted that the vocational options recommended were occupations that would allow him to alternate his position at random, avoid any heavy lifting and sustained bending or twisting.

258     An appendix to the report detailed the physical demand classifications as defined by the United States’ Dictionary of Occupational Titles in relation to the five suggested occupations. 

Plaintiff’s résumé

259     In his résumé, the plaintiff set out that he had skills or knowledge as follows:

§  able to use Microsoft Word Office

§  able to monitor sales trends

§  great communication skills

§  works well independently and in teams

§  good leadership skills

§  quick ability to learn; and

§  great time management skills.

Overview

260     There is no dispute the plaintiff suffered a compensable injury in the incident.

261     The injury has been accepted as an aggravation of disc degeneration at L3-4 and L4-5.

262     I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd & Anor v Taylor, such 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.”[74]

[74][2006] VSCA 171

Credit

263     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[75]

[75](2010) 31 VR 1 at paragraph [12]

264     It was submitted by counsel for the plaintiff that with the exception of clarification of the plaintiff’s pre-incident back history, no credit issues were raised against him.[76]  Surveillance had been undertaken but no film was shown.  There was no cross-examination of the plaintiff as to his pain and claimed level of restriction. 

[76]T111

265     Further, it was submitted the plaintiff was a very humble man and while he had made frank concessions about the work he could do, such concessions should be taken “very much with a grain of salt”, and the medical evidence as to the plaintiff’s work capacity, particularly that of Professor Dohrmann and the general practitioner, should be preferred.[77]

[77]T122

266     In these circumstances, it was submitted the plaintiff ought to be accepted, generally, as a witness of truth, trying to give and honest and accurate appraisal of himself.[78]

[78]T111

267     As I indicated to the parties during the hearing, this was not really a credit case.[79]

[79]T122

268     In my view, the plaintiff was a truthful witness who had demonstrated an active desire to return to work after the incident.  At times, he was confused in cross-examination as to his post-incident condition at various stages and what appear to be inconsistent answers are explicable on that basis.

Pre-existing back condition

269     In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.

270     In Petkovski v Galletti,[80] the Full Court of the Victorian Supreme Court accepted the proposition 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 that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  … .”[81]

[80]Supra

[81]See also AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309

271     Counsel for the defendant’s first proposition was that the plaintiff’s current presentation is not attributable to the incident or three months’ employment with the defendant and that no doctor had an accurate history of the plaintiff’s longstanding back pain dating back to 2002.[82]

[82]T90

272     It was submitted that again in February 2012, there was a fairly innocuous injury with symptoms and complaints that very closely mirror the plaintiff’s current complaints,[83] of which Dr Gilbourne and Mr Wallace did not have an accurate history.[84]

[83]T93

[84]T98

273     It was submitted there was a picture of a pre-existing symptomatic back, in as much as the plaintiff experienced an onset of pain from time to time, sometimes with no initiating event, and that picture mirrored very closely what happened in October 2014 when further pain came on without warning as Dr Gilbourne confirmed.[85] 

[85]T93

274     It was submitted the fact the plaintiff was able to work in a relatively physical job for three months was not inconsistent with the submission advanced on the defendant’s behalf as the plaintiff has a troublesome back, with flare ups that come and go.[86]  He worked for ten years at Coles and had episodic flare ups.  There was a similar situation in October 2014.[87] 

[86]T95

[87]T96

275     It was submitted that this was very clearly an aggravation case made more difficult because of the plaintiff’s symptomatic improvement up until the October 2014 flare up, unrelated to work.[88] 

[88]T98

276     However, as counsel for the plaintiff submitted, when Dr Davison was made aware of the plaintiff’s pre-incident back condition he did not change his opinion that the incident continued to materially contribute to the plaintiff’s present condition.

277     I do not consider that, pre-incident, the plaintiff had ongoing back problems of any particular significance.  Whilst the plaintiff could not recall, there were some complaints of back pain in 2002 and the following year when the plaintiff’s. Whilst there was a note of a history of chronic back pain in 2005, there was no evidence of any ongoing attendances or treatment for that condition.

278     Between 2008 and late 2011, there were no attendances on medical practitioners for any back complaint and the plaintiff was able to work unrestricted at Coles and later, IGA.

279     There was then the February 2012 injury with medical treatment until the end of the year with Dr Naidoo and physiotherapy until January 2013. 

280     The plaintiff has described his pain in February 2012 as a very sharp pain that caused him to be very restricted in a twisting motion.  He explained that the pain following the incident is totally different.  It is much more severe.  While it is hard to describe, it is like the base of his spine is being strangled.  It is a “very tight and pressure pain”.[89]   

[89]T88

281     Significantly, the plaintiff was able to work unrestricted in relatively heavy work with the defendant for three months until the incident date, repeatedly lifting weights in excess of 8 kilograms, unpacking pallets and stocking shelves without difficulty or need for medical treatment until after the incident.

282     Following the incident injury, this situation has changed. Since then, the plaintiff has continued to experience significant ongoing back pain, fluctuating with flare ups, that worsened during 2014 and have been worse October 2014 as Dr Gilbourne’s notes at that time confirm.

283     The plaintiff is now aged only thirty three.  In Stijepic v One Force Group Aust Pty Ltd,[90] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[90][2009] VSCA 181 at paragraph [43]

284     The Court held, when judging the pain and suffering consequences, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

285     The plaintiff has continued under the care of his general practitioner who referred him for physiotherapy and prescribes various painkilling medication which the plaintiff continues to take on a regular basis.

286     The plaintiff was also seen by neurosurgeon, Mr Wallace who recommended conservative treatment and arranged investigations of the plaintiff’s lumbar spine. He has also been referred ot Mr Lo and pain management specialist Dr Ong.

287     Further, since the incident, the plaintiff has had significant problems prolonged sitting and standing, bending, lifting and any heavy work.

288     The plaintiff’s attempts to increase his duties and undertake heavier lifting were unsuccessful with him finally having to cease work due to back pain in late October 2014.

289     I am satisfied that as a result of the incident injury, pain and restriction, the plaintiff no longer has a capacity for unrestricted physical employment, a consequence which I consider to be serious.

290     Whilst counsel for the defendant did not advance the proposition that the plaintiff has an unrestricted capacity for physical work, it was submitted that the plaintiff should never have been working in heavy and manual labour with the defendant.[91] It was submitted the difficulty with the plaintiff’s case was the cause of his worsening condition in October 2014.[92]

[91]T102

[92]T103

October 2014 flare up

291     Counsel for the defendant’s second proposition was that there was no suggestion that the flare up in October 2014 had anything to do with the plaintiff’s incident injury.[93]

[93]T94

292     Furthermore, while it was accepted there was a back injury, Dr Davison and Dr Gilbourne’s notes showed a good symptomatic improvement in a fairly short order.[94]

[94]T94

293     It was submitted that the plaintiff’s back condition seemed to settle down very nicely.  He returned to unrestricted work, save for an 8-kilogram lifting limit.  There was then a complication with the October 2014 flare up, until which time the plaintiff had enjoyed good symptomatic improvement. 

294     Counsel for the defendant submitted that the explanation for this situation was the plaintiff’s pre-existing spinal pathology which rendered him susceptible to episodic flare ups.[95]  There was no evidence to suggest that there was any connection whatsoever between the incident injury and that flare up.  It was conceded that it would be a different situation if that was the case.[96]

[95]T96

[96]T97

295     In response, it was submitted on the plaintiff’s behalf that flare ups post incident such as the one reported in July were an indicator of a back made prone by reason of the incident.  Whenever the plaintiff tried to push himself there was a flare up.[97]

[97]T111

296     Further the pain management course was not helpful in terms of pain reduction, but it taught the plaintiff how to handle flare ups and advised as to exercise and medication.[98]  The plaintiff’s pain levels never went away.  His condition did not really get better; however, he was able to manage the flare ups better, which made them less severe.[99]

[98]T89

[99]T89

297     I accept that there is no medical evidence to support the proposition that the incident injury no longer plays a role in the plaintiff’s presentation.  Dr Davison has considered the plaintiff’s general practitioner’s notes from 2012 to 2013 and did not change his view that the incident injury continues to contribute to the plaintiff’s present situation.[100]

[100]T110

298     I do not accept that there was a novus actus interveniens in October 2014, and no medical practitioner considered that to be the case. In my view, the symptoms then were referrable to the incident injury, which appears to have been a discal injury at two levels, and that symptomatology had persisted.[101] 

[101]T110

299     A close examination of Dr Gilbourne’s notes show flare ups since the incident, such as on 1 July 2014.  More importantly, while the plaintiff was keen to increase the weight lifting restriction and resume full duties, clearly, there were ongoing problems with his work, as detailed by Dr Gilbourne at the time leading up to late October 2014 when he had to cease work.

300     I am satisfied that while the plaintiff appeared to give different answers and agree with different propositions in cross-examination, the situation was that he tried working, with increasing difficulty, until October 2014, when he could no longer cope due to his back pain and he had to cease work. Since that time, the plaintiff’s capacity for employment and enjoyment of life has been significantly reduced.

301     As a result of his back pain and limitations, the plaintiff no longer has the capacity to work unrestricted in manual work, a serious consequence for a relatively unskilled man whose work experience has largely been supermarket work. 

302     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

303     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings; and

(ii)     “after injury” earnings. 

304     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

305     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

306     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

307     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. 

308     I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.[102]

[102]See Barwon Spinners & Ors v Podolak (supra) at paragraph [70]

309     The parties agreed that the plaintiff was being paid $24.60 at the time of the incident; however, there was a dispute as to the “without injury” earnings figure.

310     Counsel for the plaintiff submitted wage figures were strictly irrelevant as his main contention was that the plaintiff did not have a capacity for suitable employment.[103]

[103]T123

311     However, counsel for the plaintiff submitted 38 hours at $24.60 an hour was the plaintiff’s “without injury” earnings figure.  Pre incident, the plaintiff was working the hours available to him and there was no suggestion other than he was trying to work as much as possible.[104]

[104]T123; Jessop v Herald & Weekly Times Ltd [2014] VCC 308

312     Counsel for the defendant submitted that the figure should be based on the hours actually worked by the plaintiff – 32 hours – because there was no evidence from him that he was seeking to increase his hours or was going to do anything other than continue in the employment in which he had been engaged in the previous three months.[105]

[105]T105 – T106: $472 per week

313     Counsel for the defendant agreed mathematically, that on the basis proposed by counsel for the plaintiff, the plaintiff’s “without injury” figure was $550.[106]

[106]T106

314     In my view, $550 is the appropriate figure representing what the plaintiff was capable of earning in the relevant statutory period.

315     Counsel for the defendant submitted the plaintiff had not suffered the requisite loss of earning capacity because he had very good computer skills by his own admission, which equip him to work in very many office-based, clerical-based environments.[107]

[107]T98

316     It was submitted Dr Davison was best qualified to assess the plaintiff’s work capacity as he is an occupational physician who has seen the plaintiff many times.[108]  It was submitted the true position was a very moderate degree of symptomatology as Dr Davison described.  Whilst he accepted there was an ongoing contribution of the incident injury to the plaintiff’s condition, Dr Davison did not have a history of the October 2014 flare up which was not related to work and was told by the plaintiff of a basically unchanged condition.[109]

[108]T99

[109]T100

317     Dr Davison considered the plaintiff has a capacity for the range of jobs suggested by IPAR, starting on a graduated basis with four hours per day and increase at a rate of half-an-hour per fortnight.  Whilst it was submitted Dr Davison considered the plaintiff could resume full time employment, counsel for the defendant confirmed in addresses Dr Davison thought this goal; however, could not be guaranteed.[110]

[110]T125

318     Counsel for the defendant also submitted that as the plaintiff reported to Professor Dohrmann and Dr Davison, there had been no real change in the condition over the last couple of years and there was a good improvement post pain management.

319     It was submitted that it could not be explained how Dr Gilbourne changed his certification from  full-time duties, with an 8-kilogram limit to the plaintiff presently being fit to only work two hours, two days a week.  It was submitted that the only explanation could be the flare up in October which was not work related.  In those circumstances, Dr Gilbourne’s opinion was so far outside the range that it should be disregarded.[111]

[111]T108

320     Dr Sutcliffe, who was an experienced occupational physician, thought the plaintiff could work 20 hours a week and Dr Ong, the plaintiff’s treating pain management specialist, thought he could work up to 24 hours a week.[112]

[112]T108

321     In written submissions in response to counsel for the plaintiff’s reliance on the recent decision of the Court of Appeal in Richter vDriscoll,[113] counsel for the defendant submitted in the present case, there is simply no evidence that would enable the Court to draw the conclusion that the plaintiff’s retained capacity is not “merchantable”[114] based on the view of Dr Sutcliffe or, alternatively, that the weight of evidence strongly pointed to the conclusion that the plaintiff does have a “merchantable” retained capacity.

[113][2016] VSCA 142

[114]See Richter v Driscoll (supra) at paragraph [96] (Ashley JA and Kaye JA)

322     Counsel for the defendant submitted the plaintiff has a capacity for full time or, with slightly restricted hours, to undertake the jobs set out by IPAR and Health‑e Workforce Solutions in its recent assessment.

323     Further, it was submitted that the plaintiff “came perilously close” to accepting that he was capable of suitably restricted office-based environment type work on a full-time basis.[115]

[115]T106

324     It was submitted working half or three quarters of full time, the plaintiff would not suffer the requisite loss of $550 loss in the roles of weighbridge officer ($730-$860), concierge ($727) or clerical ($57,000 per annum).[116]

[116]T106

325     A similar submission was made in respect of the jobs of product assembler and sales assistant ($800), enquiry clerk ($1,000) and data word processing operator ($966).[117]

[117]T108

326     It was submitted that the plaintiff had a capacity to engage in full time, or if not full time, only modestly restricted hours, in a wide range of office-based clerical administrative roles and he, therefore, had not suffered the requisite loss.[118] 

[118]T109

327     If it was accepted the plaintiff’s present symptoms were significant, counsel for the defendant submitted they could only arise as a result of the October 2014 flare up that was not work related and followed months of symptomatic improvement.[119]

[119]T109

328     In response, counsel for the plaintiff submitted the plaintiff is not work shy and actively wants to get back to work.[120]  He is motivated to return to work, as shown by his cooperation with IPAR and his application for jobs in more recent times even after he was off that program.[121]  

[120]T111

[121]T112

329     Whilst the plaintiff was hopeful of getting some suitable sedentary work and made frank concessions about the work he thought he could do, counsel for the plaintiff submitted these concessions should be taken with a grain of salt as he is not a very sophisticated man and that the medical evidence was therefore very important in this regard.[122]  

[122]T122

330     The plaintiff will not know how he could cope with suggested jobs until he tried them, but the reality is he has constant problems with his back which has caused him to have severe pain.[123]

[123]T112

331     Counsel for the plaintiff relied on Dr Gilbourne’s view that the plaintiff is currently fit to work for only two hours, two days a week. It was submitted that Dr Gilbourne was the best witness in a position to judge the plaintiff’s work capacity.  He actively encouraged the plaintiff to increase his hours on his return to work but ultimately certified him unfit for any work in October 2014.[124]

[124]T113, Richter v Driscoll (supra) at paragraphs [95]-[97] per Ashley JA and Kaye JA

332     Professor Dohrmann entirely supported Dr Gilbourne’s view when he examined the plaintiff in October 2015.[125]

[125]T113

333     Whilst occupational physician, Dr Sutcliffe, thought the plaintiff had a capacity to work up to 20 hours a week, she considered that capacity was only for jobs that would be offered by personal contacts or through the disability support industry.  In these circumstances, counsel for the plaintiff submitted the plaintiff’s employability would not be saleable in the open market and would not constitute suitable employment.[126] It would not give rise to remunerative employment in the open labour market.[127]

[126]T115

[127]T118

334     Counsel for the plaintiff also relied on vocational assessor, Susan George, who shared a similar view to Dr Sutcliffe.  For the purposes of identifying suitable employment, she assumed that employment is in an unrestricted recognised occupation without special support or arrangements for the worker.[128]

[128]T119

335     Whilst counsel for the plaintiff conceded there was nothing to indicate the plaintiff would not succeed in completing the Certificate III when the course was available, his ability to work in a job having obtained that qualification was another issue.[129]

[129]T120

336     It was submitted if the plaintiff’s level of functionality was as described to Dr Davison in June 2016,[130] it was very hard to see the plaintiff being suitable for any remunerative employment as the employer would require a reliable worker in whatever role.[131]

[130]See paragraph [241]

[131]T121

337     It was submitted that there was not sufficient detail of any of the IPAR jobs, save for secretarial work, to be confident the plaintiff could do them.[132]  He knew he could not work as a security officer, as that role would require him to be physically fit and to have a licence.

[132]T121

338     The plaintiff’s physical capacity in these circumstances will not give rise to remunerative employment – in other words, he is not fit for suitable work on the open labour market.[133]

[133]T118

339     Counsel for the plaintiff submitted that the plaintiff would not have a capacity to do the suggested jobs or any other work and had, therefore, suffered the requisite loss.

340     In my view, the plaintiff does not have the capacity to earn $550 per week in suitable employment.

341     The plaintiff tried hard to increase his duties on his return to work after the incident but had increasing difficulty doing so and his condition deteriorated to the point he was certified totally unfit for any duties in October 2014.

342     Subsequent attempts by IPAR to find the plaintiff suitable work have been successful as were job applications made by the plaintiff himself.

343     Even having completed the Certificate III, I am not satisfied the plaintiff would be able to work in a clerical role on a reliable, sustained fashion. He would struggle sitting at a desk for more than a couple of hours per day.  I accept that he needs to sit or stand when he feels increased pain and sometimes needs to lie down or take stronger medication.  By the end of the day, he would have difficulty moving.

344     Whilst the plaintiff has some computer skills and may be able to expand the range of systems he can operate, he would experience difficulty sitting at a work station for extended periods for the reasons discussed above.[134]

[134]T89

345     Further, the plaintiff would be unable to work in a security because of the need to be physically fit to carry out the full duties in this role.

346     In my view, the plaintiff’s work capacity is somewhere between the very limited hours suggested by his general practitioner and Professor Dohrmann and the upper range of 20 to 24 hours per week, which pain management specialist Dr Ong considers appropriate.

347     Dr Davison is alone in the view the plaintiff has a capacity to return to full-time hours but, in his view, this could not be guaranteed.

348     In these circumstances, the plaintiff does not have the capacity to earn in excess of $550 per week.

349     As practitioners including Dr Ong opined, the plaintiff’s prognosis remained guarded but it was likely he would suffer persistent pain symptoms and limited capacity for the foreseeable future.

350     Having been satisfied on the evidence the plaintiff has suffered the requisite loss as he does not have the physical capacity to earn in excess of $550 per week, it is not necessary to consider further the submissions made by counsel as to the definition of “suitable employment” in light of the recent decision of the Court of Appeal in Richter v Driscoll.[135]

[135]Supra.  Recently considered by the Court of Appeal in Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188

351     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

352     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

353     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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