Quick v Ambulance Victoria
[2018] VCC 1075
•12 June 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02580 and
Case No. CI-17-05161
| STEVEN ANDREW QUICK | Plaintiff |
| v | |
| AMBULANCE VICTORIA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2018 | |
DATE OF JUDGMENT: | 12 June 2018 (Revised) | |
CASE MAY BE CITED AS: | Quick v Ambulance Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1075 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the cervical spine – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Altona Bus Lines and Anor v Lococo [2002] VSCA 159; Petkovski v Galletti [1994] 1 VR 436; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; R J Gilbertsons Pty Ltd v George Skorsis [2000] VSCA 51; Flintrop v Austral Brick Co Pty Ltd & Anor [2016] VCC 2114
Judgment: Application No. CI-17-05161 – leave is granted to bring proceedings for damages for loss of earning capacity.
Application No. CI-16-02580 is dismissed.
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PPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr D Gibson | Ellis Palmos & Co |
| For the Defendant | Mr S A Smith with Mr S Scully | Minter Ellison |
HER HONOUR:
1 There are two applications 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 first defendant.
2 Application No. CI-16-02580 relates to injury suffered from 2007 to May 2010 (“the said period”). Application No. CI-17-05161 related to injury suffered on 24 December 2015 (“the said date”).
3 The applications are brought pursuant to s134AB(37)(a) of the Act. The relevant body function is the cervical spine.
4 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded in relation to both applications prior to the date of hearing.[1]
[1]Transcript (“T”) 1
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 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 s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 In this application 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.
8 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
9 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
12 The plaintiff relied upon four affidavits. 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.
The Plaintiff’s evidence
13 The plaintiff is aged fifty-four, having been born in October 1963. He presently lives in Anglesea.
14 The plaintiff commenced employment with the first defendant as an ambulance paramedic on 3 February 1986. In the said period, he was required to use a handheld computer known as a VACIS tablet (“the tablet”) with which to record case details of ambulance services.
15 Because of the postures he had to adopt while using the tablet, the plaintiff developed neck discomfort, particularly on the right side. In 2010, the symptoms of neck and right shoulder pain gradually got worse and he reported the injury on 28 May 2010. A WorkCover claim made in July that year was accepted and the plaintiff was paid WorkCover benefits.
16 Ultimately, the plaintiff’s general practitioner referred him to Mr David Wallace, neurosurgeon, in September 2010, who advised surgery which was undertaken on 4 February 2011 (“the first operation”). This procedure provided the plaintiff with considerable relief, particularly in the short term.
17 By about June 2011, the plaintiff had returned to normal ambulance duties apart from being excused from using the tablet. There were aggravations of his neck condition travelling in an old ambulance and also when lifting heavy patients over 2012-2013.
18 The plaintiff was put off work for ten days in April 2013 and saw Mr Wallace that month. He advised the plaintiff to continue with conservative treatment and indicated he did not think surgery was required.
19 The plaintiff was provided with some modified equipment in mid-2013, but it did not help much.
20 In July 2013, the plaintiff saw Dr Park at Torquay, who put him off work for about two weeks because of right-sided neck and right trapezius pain.
21 The plaintiff remained at work, but continued to suffer numerous aggravations, such as being bounced about whilst riding in the back of the ambulance from 2014. He saw doctors at Lorne from time to time, usually Dr Mullen. At times, the plaintiff required some time off work as a result of exacerbations of his neck pain and in 2015, he was provided with a stand-up desk, which helped.
22 On the said date, the plaintiff’s neck was again aggravated when he was punched in the right eye while sitting in an ambulance at Lorne (“the assault”). Dr Mullen arranged a CT scan after the assault. The plaintiff worked for a week, but was then put on WorkCover because of his neck pain and right arm symptoms. At that time, he was about to go on a year’s long service leave.
23 Dr Mullen arranged for a further MRI scan and the plaintiff had some physiotherapy in January 2016, which helped a little. In February that year, he saw a masseuse, whose treatment was helpful.
24 From late January 2016, the plaintiff had physiotherapy at Anglesea for his neck and shoulder. On 22 February 2016, he saw Mr Rogers, neurosurgeon, about his neck. Mr Rogers advised surgery.
25 The plaintiff sought an opinion from another neurosurgeon, Mr Nicholas Hall, later that month. He agreed with Mr Rogers regarding further surgery, but first recommended an injection, which the plaintiff had in March 2016.
26 In his March 2016 affidavit, the plaintiff described his current neck condition. He had difficulties with movement and problems sleeping. He needed to be very careful at work because his neck could be easily aggravated. He continued to be excused from using the tablet. He could use a computer for up to twenty minutes before experiencing pain in the right side of his neck and down his right arm.
27 The plaintiff was then concerned about the prospect of further surgery and the vulnerability of his neck and the effect of his injury upon his further work.
28 The plaintiff described his level of pre-injury involvement in sporting activities – surfing, paddling a kayak, using a surf ski, scuba diving, road cycling, swimming – and the restrictions caused by his neck injury. He also had difficulty with housework and had problems driving.
29 The plaintiff swore a second affidavit on 5 July 2017 in relation to the assault. He described the tablet injury having affected his employment capacity and precluding him from engaging in some of his pre-injury leisure activities, and interfered with others.
30 The assault caused the plaintiff to suffer a very considerable exacerbation of his neck pain and tightness and referred pain into the right arm, but it did not subside like previous exacerbations and flare ups following the first operation.
31 The aggravation from the assault caused the plaintiff to be unable to work and led to further neck surgery on 22 December 2016 (“the second operation”). However, he did not believe the assault would have had the very considerable impact on his neck, which it had had, if he had not had the pre-existing neck condition.
32 The plaintiff described, in some detail, the assault circumstances. He would not have gone to the callout site alone if he had been told by the ESTA operator there were very angry boys at the scene and possibly young males under the influence of alcohol or drugs. There was also a lack of communication with his work partner.
33 The plaintiff had been skiing in New Zealand in September 2015 on the intermediate blue runs. He was not a man who skied all day. He had to be cautious of his neck, but that did not preclude him from skiing.[4]
[4]T14
34 Before the assault, the plaintiff had planned to go on a kayaking trip to Tasmania in a double kayak with a friend in January 2016. The program was entirely weather dependent, and involved island hopping. The longest load would have been about 8 hours, and the shortest, 3 or 4 hours a day.[5]
[5]T11
35 In March 2016, the plaintiff went to Patagonia for five weeks on a trip he had organised prior to the assault as part of his intended long service leave. During the trip, he had to be cautious, and he continued to suffer from neck and right arm pain, worse when looking upward. He went walking with groups including older people. He wore hiking boots, and carried a daypack. The walking was not particularly strenuous.[6]
[6]T11
36 The plaintiff tried to keep active, and in the middle of the year took his mother on a trip to the North Island of New Zealand, which had been earlier planned.
37 In June 2016, Dr Mullen gave the plaintiff a further injection into his neck. The plaintiff had left shoulder surgery on 21 June 2016.[7] He then took leave of two to three months until October 2016 to recover from that surgery.
[7]New Zealand skiing injury September 2015
38 As the plaintiff’s neck and right arm symptoms were getting worse, Dr Mullen referred him back to Mr Hall, who recommended surgery in September 2016.
39 Prior to the second operation on 22 December 2016, the plaintiff had pain and tightness in his neck, worse than in 2015, but similar to what he had experienced in late 2010, prior to the first operation. He also had a lot of pain in his right upper arm and numbness in his right forearm and right thumb, and tingling in his fingers, worse than what he had in 2015, but not quite as bad as he had in late 2010, before the first operation. The left side of his neck was sore, which had not been the case prior to the assault.
40 The plaintiff had a lot of right arm discomfort for about five weeks or so after the second operation, but those symptoms passed. He also had a lot of tightness and pain, and discomfort, in his neck.
41 The plaintiff started physiotherapy in Anglesea in February 2017.
42 As of 5 July 2017, the plaintiff was seeing Dr Mullen regularly and taking Panadol two to three days a week for moderate to severe neck pain. In his affidavit of that date, the plaintiff described the current condition of his neck and problems with sleep.
43 Following the second operation, the plaintiff had not had pain radiating into his right arm, but he had frequent episodes of moderate to severe pain in both sides of his neck, whereas, previously, he only had pain on the right side of his neck. He now needed to take Panadol regularly, whereas in the months prior to the assault, there were exacerbations, at which time he had increased pain and took Panadol.
44 In the months prior to the assault, extending his neck was restricted and the plaintiff had some restriction rotating to the right. He was now more restricted with extension and rotation to the right, but also to the left. His lifting ability had been further restricted. His sleep problems had increased.
45 The plaintiff described the effect of his neck injury upon his employment and earning capacity.
46 After trying to return to normal duties following the assault, the plaintiff’s arm and neck symptoms were much worse than in 2015, plus he had to cease work and obtain rather significant and ongoing treatment that he was not required to have during 2015.
47 In the first half of 2017, the plaintiff had discussed his employment future with the first defendant. Those discussions were confronting and confusing, and as such, he then had no idea what plans were in place for him to return to work.
48 The plaintiff then feared his neck would not cope with the return to work as an operational paramedic. He was also concerned how he would cope if given office duties, as working on the computer for more than about fifteen minutes, would be likely to cause an increase in his neck pain.
49 The plaintiff had been told he was being transitioned out of the Ambulance Service, but then told this advice was not correct. He was confused and stressed by this situation.
50 The plaintiff continues to have monthly contact with his direct online manager at Barwon South West Group. This is just purely a welfare check. He has not had any discussions about future employment with the first defendant since June last year. A return to work program was then discussed, but he was informed his position at Lorne was to be filled by someone else. It was going to be advertised because he had been on WorkCover for longer than a year. He was informed by the return to work officer that he was being transitioned out of the service. He had real concerns about his future with the first defendant.[8]
[8]T22
51 In the few months prior to the assault, the plaintiff had managed to continue to work as an operational paramedic at Lorne, but suffered a number of exacerbations from activities such as rough rides in the ambulance and awkward lifts. However, he now had increased pain, not only in the right side of his neck, but also on the left, and frequent episodes of moderate to severe pain, for which he needed medication and had reduced his lifting power further. He was concerned that he was no longer able to work as an operational paramedic, particularly at Lorne, where it was frequently necessary to travel over rough bush tracks for considerable distances.
52 If the plaintiff had not suffered the injury to his neck from the tablet use, he did not believe the assault injury would have caused the level of incapacity. He believed each injury had significantly contributed to his incapacity.
53 The plaintiff described the effects of his neck injury on social, domestic and leisure activities, and the further reduction in his level of exercise due to the assault injury.
54 The plaintiff affirmed an affidavit in February 2018 updating his symptoms and restrictions.
55 Since July 2017, Dr Mullen had been certifying the plaintiff as unfit for work and he had been on sick leave.
56 The plaintiff had not had any proposals from the first defendant regarding a return to work and had not been involved with any rehabilitation or vocational organisations.
57 The plaintiff did not believe he was fit to return to work as an operational paramedic with his neck condition. The more physical activities – such as swimming and ski paddling – he tried to do, he was inclined to suffer increased neck pain and tightness.
58 The plaintiff also did not believe he could do office work requiring considerable computer work, as required in the role of a team manager. He could only tolerate about fifteen minutes at a time on the computer at home without suffering increased neck pain and tightness. He then did not feel confident that there was any employment he could do on a sustained basis with his neck condition.
59 The plaintiff described the effect of his neck condition on his social, domestic and leisure activities. Importantly, he described the increased problems with pain, function, earning capacity and leisure activities resulting from assault injuries.
60 The plaintiff confirmed, by 2015, his condition had stabilised. That year, before the assault, he had pain in his neck, radiating to the right trapezius, and also numbness of his right thumb. He found significant or prolonged extension of his neck caused a sharp pain and tightness on the right side. His neck was vulnerable to aggravations, jolts and vibrations. Repetitive movements of his right arm also aggravated his neck, and his movement to the right was restricted at times. His sleep was frequently disturbed.
61 As of February 2018, the plaintiff believed his neck was reasonably stable following the assault and the second operation.
62 The difference, now, in the pain and restricted function of his neck compared with 2015, is that in addition to pain and restricted function, the pain is now more persistent and he has pain and tightness, now, in both sides of his neck, and also tends to have restricted movement to the left now, as well the right at times.
63 As he has been off work, the plaintiff has not suffered the aggravations he frequently suffered from work activities as previously deposed to, but he is now suffering more frequent flare ups from activities such as swimming and paddling. He now relies on regular physiotherapy to ease his pain and tightness, and even more intensive physiotherapy to deal with flare ups, whereas in 2015, he was largely able to get by without physiotherapy. He now needs medication more frequently and in higher doses than he needed in 2015.
64 The plaintiff confirmed he described his pain as 3 out of 10 when seen by Dr Yong in 2017 and earlier this year. That was the pain level on that day, but on a different day it may have been different.[9]
[9]T15
65 The plaintiff disagreed that 3 out of 10 was a pretty fair description of his pain day to day. It is not consistent. He cannot honestly say it would be 3 out of 10 on however many days, because it is not at this level on consistent days. At its worst, it is probably 7 to 8 out of 10, and that happens regularly.[10]
[10]T16
66 The plaintiff does not take stronger pain medication because that is “a road [he does not] want to go down,” having seen the effects of addiction during his work.[11]
[11]T17
67 The plaintiff agreed on a good day he could get by with Panadol when the pain was as little as 3 out of 10. On days when it is worse, “they are not particularly pleasant days,” but he does not take any more medication.[12]
[12]T17
68 The plaintiff explained he regularly had pain at 8 out of 10, consistently two or three times a week. At the moment, he is having physiotherapy once a week, and definitely by day 5 or 6 he is looking for the treatment. He has reached a happy medium at the moment of doing about an hour’s exercise a day, which does not seem to exacerbate things. However, that is not a lot of exercise for him, but when he has tried to do more, he has exacerbated his neck.[13]
[13]T28
69 The plaintiff agreed he can sit, stand, and walk unrestricted, and drive for two hours.[14]
[14]T18
70 On “not pleasant days”, the plaintiff isolates himself from the world because he is pretty grumpy. He tries to restrict what he does, and just does a lot of lying around and taking it easy, not doing anything to upset things. He takes the dog for a leisurely walk, but that is about it.[15]
[15]T28
71 Prior to the assault, the plaintiff was able to work as an operational paramedic, but was vulnerable to aggravations and exacerbations. Since then, he has been largely off work and does not feel capable of returning as an operational paramedic or team manager doing sustained office work. He now has more persistent pain and tightness on both sides of his neck and more restricted function.
72 In cross-examination, the plaintiff confirmed the onset of neck pain in 2009. Initially, he had an excellent result from the first operation. He was effectively pain free and very little restricted through until 2013, and thereafter, had occasional intermittent flare-ups of pain.[16]
[16]T9
73 The plaintiff was provided with a stand-up desk, and was excused from using the tablet. He was able to earn $110,000 in the 2014-2015 financial year.[17]
[17]T9
74 The plaintiff agreed the assault led to a marked change in his symptoms, and to date, he had not been able to work as a paramedic. He agreed his experience from 2011 to 2015 suggested to him, had he not been assaulted, it would have been his intention to continue to work as a paramedic up until the present time.[18]
[18]T10
75 The plaintiff described the flare-ups at work between 2013 and 2015. Basically he had stopped doing any physical activities that aggravated his neck, so a heavy lift, or quite a few times a rough drive, certainly caused him some discomfort.[19]
[19]T29
76 The plaintiff affirmed a fourth affidavit in April 2018 in which he referred to the CoWork reports of June 2017 and March 2018.
77 In general terms, he did not believe those reports took into account his persistent neck pain and frequent flare ups, during which his neck felt tight. The flare ups occurred when he tried to be more active, but also sometimes for no apparent reason. They were unpredictable, meaning they were variable in timing and frequency, but currently occurred two to three times a week and varied in their duration.
78 Because of the need for physiotherapy, severe episodes of disturbed sleep and feeling generally tired and irritable, the plaintiff could not provide any prospective employer with reliability.
79 The plaintiff is not qualified for the suggested teaching position and would have problems with computer use.
80 The plaintiff is not qualified to work in health promotion and as a sales representative. He does not have a Master of Public Health qualification or a science degree, or a Certificate IV in Training and Assessment, or tertiary qualifications in community planning or public health.
81 The plaintiff had not had any funding offers in order to undertake any such courses and believed he would struggle to do them with his problem with prolonged computer use. He has not had experience in sales and, again, believed his tiredness and irritability would not make him a suitable candidate for sales positions.
82 The plaintiff noted some of the proposed positions were in the north and western suburbs of Melbourne. He lives in Anglesea in rented accommodation. He would find travelling on a daily basis to these locations very tiring and uncomfortable with his neck pain and consequent disturbed sleep.
83 The plaintiff was cross-examined about the suggested sales position. He understood about medication and medical equipment, and in broad, understood medical conditions. He thought he had excellent communication skills and adequate computer skills. He could touch type, and had a lot of experience in using the computers in the workplace. He had not worked in a sales job, but understood what it involved. He had not given work of that type any consideration.[20]
[20]T19
84 The plaintiff was taken through the various tasks involved in the pharmaceutical sales representative job suggested by CoWork. He understood those tasks, and when it was put that nothing he had said suggested he would not be capable of doing them, he said he did not know and had he had not tried. He had never sold anything in his life.[21]
[21]T25
85 In re‑examination, the plaintiff said he would have some concerns about a sales representative job if there were long distances and long duration driving, because his neck becomes stiff and tight. He cannot use the computer for long, with the static position of his neck tending to aggravate it.[22]
[22]T26
86 The plaintiff has not used a computer since the second operation. One of the most aggravating factors of his neck pain is computer use. He now uses a computer for five minutes at a time to check his emails or do something similar.[23]
[23]T24
87 Aged fifty-five, the plaintiff is currently renting a house. He is not going to be able to afford anything if he cannot work, so he would like to get back to work to some form of income.[24]
[24]T26
88 The plaintiff does not have any qualifications or coaching accreditation. He has never played competitive cricket in his life or engaged in water polo or any athletics after finishing school.
89 In January this year, the plaintiff had to administer CPR on a family friend for twenty minutes. Doing so, his neck was very sore and tight and it took about five days for the pain to return to its “normal” level.
90 The plaintiff explained CoWork’s comment in its report that he was contemplating an early retirement.[25] He “absolutely” would have liked to have returned to the ambulance service. That was his intention all along. But it was a decision that had been taken out of his hands, “unfortunately”.[26]
[25]T20
[26]T21
91 The plaintiff was not offered a job by the first defendant nor had he been given any retraining. He had missed out on a lot of training and updates while on sick leave, so the position was to go back two to three times a week, 2 to 4 hours a day, and catch up on clinical updates he had missed out on.[27]
[27]T22
92 The plaintiff confirmed he certainly did not want to retire. He is motivated to go back to work. As his return to work three or four months after the first operation on full duties showed, he was not “someone to sit around and malinger”.[28]
[28]T22
93 The plaintiff had been particularly upset about the treatment he had been given and the lack of support by the first defendant. His reference to early retirement was like a “throw up your hands in frustration” comment.[29]
[29]T23
94 The plaintiff disputed that he was intending to retire and enjoy himself as much as he could, asking rhetorically how much enjoyment he would have living every day with chronic pain. He is not able to access his super for another five years until he is sixty and said he “need[s] something to keep [him] going”.[30]
[30]T24
Lay evidence
95 Richard Kehoe, paramedic, affirmed an affidavit in February 2018 to which his statement in relation to the assault was exhibited.
Medical evidence as to work capacity
96 Dr David Mullen, the plaintiff’s general practitioner from the Lorne Medical Centre, presently certifies him as having no capacity for employment.
97 Immediately prior to the assault, Dr Mullen confirmed the plaintiff had a good result from the first operation and most of the time was pain free. Certain postures and movements aggravated his pain, especially working on the portable laptop at work. Over the next number of years, he had had other occasional exacerbations which required attendances, such as slipping on the beach while transporting a patient and having a bumpy road while riding in the ambulance. These exacerbations generally resolved with rest.
98 Dr Mullen thought the assault exacerbated the plaintiff’s longstanding neck condition and did not respond to usual treatment. While the direct trauma from the assault settled quickly, a long-term condition was severely exacerbated, leading to surgery in December 2016, which the plaintiff had planned to avoid at all costs.
99 Dr Mullen thought the plaintiff’s condition incapacitated him from his employment as an operational paramedic. The tablet injury clearly contributed to this situation. Dr Mullen believed the assault materially caused preclusions, restrictions and/or incapacities by causing a severe exacerbation of the plaintiff’s underlying neck condition. He believed the plaintiff’s vulnerability was a cause of the aggravation following the assault.
100 Dr Mullen provided a report in May 2018, in which he commented on the CoWork reports.
101 Dr Mullen concluded that the plaintiff, if qualified, was suitable for the role of vocational secondary and health promotion teacher, presuming he could find employment at a location within a reasonable travel time to and from work.
102 Dr Mullen believed the jobs of sales representative and sports coach instructor would be unsuitable for the foreseeable future as they both involved prolonged travel due to the nature of the roles.
103 Dr Mullen recommended the plaintiff first return to work on a part-time basis, sixteen to twenty hours a week. As he became orientated with the job and monitored his neck’s response to it, the plaintiff could increase these hours. Similarly, but not expected, he may need to decrease the hours if he could not tolerate them.
104 Dr Mullen considered an administrative position would be a suitable option for the plaintiff. Computer work, including desk work, would be manageable if suitable ergonomics in relation to his neck injury and appropriate OHS training was provided.
105 Mr Wallace, neurosurgeon, last saw the plaintiff in April 2013. When he saw him in October 2012, the plaintiff was back to doing full-time duties, and Mr Wallace was delighted with his progress. He thought the plaintiff had the capacity to do his pre-injury duties.
106 Following his last examination, Mr Wallace noted, as the plaintiff was approaching fifty, if he felt the disc disease in the area of the first operation was becoming an irritating problem, then clearly, he might be wise to change his future work plans. In Mr Wallace’s view, clearly, heavy hands-on paramedical activities were more likely to give the plaintiff trouble long term rather than a sedentary job.
107 Mr Hall did not comment on the plaintiff’s work capacity, having last seen him post surgery, in April 2017.
The Plaintiff’s medico-legal evidence
108 Mr David Brownbill, neurosurgeon, examined the plaintiff on behalf of the defendants in July 2016, prior to the second operation.
109 The plaintiff told Mr Brownbill the first operation relieved a lot of his right arm symptoms – “Pain had pretty much gone away but I still had same numbness in the right thumb”. He was able to return to work two months following surgery and perform his full normal paramedic duties.
110 Mr Brownbill thought the plaintiff should avoid activities involving heavy lifting for cervical spine mobility or holding his neck in a fixed position. In his view, that would restrict the plaintiff’s ability to perform pre-injury duties.
111 Mr Drnda, neurosurgeon, examined the plaintiff in December 2017.
112 In terms of history, Mr Drnda noted a worsening of neck pain in March 2013, after the plaintiff was bounced in the back of an ambulance. Mr Wallace had recommended conservative treatment, and the plaintiff had physiotherapy and myotherapy. He improved but was left with some neck pain and occasional numbness down his right arm. He continued working. He was still able to work as a paramedic and team manager, with modifications, no longer using the computer and had a stand-up work desk.
113 Mr Drnda noted the assault, following which the plaintiff had time off work and was awaiting a return to work plan, but during 2017, there was not one in place.
114 On examination, the plaintiff complained of some stiffness in the left side of his neck and mild discomfort in the neck, and had a small area of persisting numbness in the right thumb.
115 The plaintiff was taking occasional medication for his neck pain and discomfort.
116 Mr Drnda diagnosed persisting mild dysfunction of the neck following two operations, without significant radiculopathy.
117 Mr Drnda thought the plaintiff would be precluded by his neck from engaging in employment activities requiring prolonged neck extension and flexion, repetitive neck movements and awkward neck postures.
118 Theoretically, pushing and pulling could be performed on flat and even surfaces, with minimal restriction. However, it was impossible to ascertain that the plaintiff’s working environment had this ideal surface. Mr Drnda thought the weight limit would be up to 30 to 40 kilograms.
119 Mr Drnda did not think there should be any repetitive lifting above shoulder height and occasional lifting of 5 to 6 kilograms would be acceptable, as would occasional lifting from bench height, and weight limit would be up to 10 kilograms. He thought the plaintiff was capable of driving for up to two hours.
120 Mr Drnda thought the tablet injury was still and is a contributing factor for the plaintiff’s condition, noting he was exposed to continuous awkward posturing of his neck while using the device. On top of that, in his work as a paramedic, the plaintiff was often required to attend to patients in very constrained spaces and exposed to awkward positioning of both his body and neck.
121 Mr Drnda considered the assault injury was a significant contributing factor to the plaintiff’s current condition. Therein, he sustained a sudden blow to the face which caused rotation and lateral flexion of his head to the opposite side, and caused significant flare up of his neck pain and right arm radiculopathy.
122 Mr Drnda believed the tablet injury had caused all the preclusions or restrictions. Further, the assault materially contributed to these factors. As the plaintiff was hit suddenly in the face, he was not able to defend himself, which resulted in rapid rotation of his head and neck to the left, causing significant strain to his cervical spine and recurrence of the condition.
123 Mr Drnda believed the above-mentioned preclusions or restrictions had resulted from material contributions by each of the tablet injury and the assault.
124 As a result of the tablet injury, the plaintiff developed aggravation of constitutional cervical spondylosis with the result of chronic neck pain and right C6 radiculopathy. As a result of the assault, he developed an aggravation and recurrence of the previously largely settled cervical spine dysfunction. He developed recurrent C6 radiculopathy with neck pain.
125 Mr Drnda considered the tablet injury caused the plaintiff’s cervical spine to be vulnerable to further injury. This vulnerability was the cause of the aggravation and recurrence of his signs and symptoms as a result of the assault injury.
The Defendant’s medical evidence
126 Dr Yong, occupational physician, first examined the plaintiff in June 2017.
127 The plaintiff told Dr Yong, after the first operation, he had immediate relief in his right upper limbs, but still some neck discomfort. He was able to return to full-time hours doing normal duties about ten weeks later.
128 The plaintiff advised that after approximately eighteen months of this, he then started to notice some right arm symptoms, which were similar to what he was experiencing before the first operation. He occasionally had some time off if he had a flare up and tried some myotherapy, which helped his right arm symptoms.
129 The plaintiff advised Dr Yong of the assault and that, thereafter, he had increasing neck pain and right upper limb symptoms of increased severity than what he had previously experienced. He had planned long service leave in January 2016 and continued working in normal duties and hours as a paramedic until then.
130 The plaintiff said, after ceasing work for leave, he was having persisting symptoms and was referred to a neurosurgeon, who suggested surgery, which the plaintiff was not keen to proceed with. The plaintiff then had a few steroid injections, which led to some short-term improvement.
131 The plaintiff had further surgery in December 2016. Thereafter, he had immediate relief in his right upper limb, especially his lower arms. The upper arm pain resolved after a further three to four months. He reported his symptoms were gradually improving, but he had a persisting tightness in his neck which was felt on both sides.
132 The plaintiff described tightness, stiffness and discomfort in his neck, which he noted on both sides. The pain level was 3 out of 10. Prior to the second operation, on a good day, it was 5 to 6 out of 10 and on a bad day, 8 to 10 out of 10. There were no arm symptoms currently.
133 Dr Yong concluded there was some mild cervical spine dysfunction and an ongoing ache.
134 Dr Yong thought the plaintiff had capacity to perform tasks within the following restrictions: avoiding repetitive neck movements, awkward neck postures, firm pushing and pulling, lifting more than 8 kilograms on a repeated basis with an additional reduction in working hours.
135 Dr Yong noted the plaintiff was due to start a return to work program performing training duties for his pre-injury employer. He would expect that that would be office based and indoor training tasks and avoiding any significant manual handling requirements. He considered the plaintiff’s pre-injury role would not be suitable.
136 Dr Yong was forwarded CoWork’s vocational assessment of July 2017 which identified five suitable employment options. Dr Yong considered all jobs were suitable for the plaintiff to perform.
137 With respect to working hours, given the diagnosis, clinical cause and chronicity of the condition, Dr Yong thought a graduated return to work program would be indicated involving working reduced hours, such as sixteen to twenty a week. The aim would be to return back to pre-injury hours over a period of time, which he anticipated between three and five months.
138 Dr Yong re-examined the plaintiff in March 2018.
139 The plaintiff then said he had discomfort in the back of his neck on both sides all the time, which had not resolved. He rated it 2 to 3 out of 10. There was no radiation of pain down into his arms.
140 The plaintiff described problems in terms of his return to work and being advised there were no duties available for him and that he was being transitioned out of the ambulance service.
141 On examination, Dr Yong thought there was mild cervical spine dysfunction and ongoing symptoms.
142 Dr Yong confirmed the restrictions he had earlier suggested. His opinion, therefore, regarding the suitability of the task was unchanged, as was his view as to the hours the plaintiff could work.
143 Professor Doherty, consultant psychiatrist, examined the plaintiff in April 2018 and found he did not have a diagnosable psychological condition.
Vocational evidence
144 CoWork carried out a vocational assessment and labour market analysis in June 2017. A number of suitable roles were suggested for the plaintiff:
· Vocational teacher, $74,152 per annum or $1,426 weekly
· Secondary teacher, $85,896 per annum or $1,648 weekly
· Health promotion officer, $86,372 per annum or $1,661 weekly
· Sales representative (medical and pharmaceutical products), $101,712 per annum or $1,956 weekly; and
· Sports coach, $78, 832 per annum or $1,516 weekly.
145 The sales representative role involved visiting clients and retail outlets to establish selling opportunities. There were thirteen jobs identified in Geelong and surrounds.
Overview
146 As pain and suffering has been conceded in relation to both applications, I must determine whether the plaintiff has suffered the requisite 40 per cent loss of earning capacity as a result of each of the workplace injuries.
147 Firstly, I considered the plaintiff to be a very credible witness who has shown stoicism in his attempts to return to work following two significant operations.[31]
[31]T53
148 Pain and suffering having been conceded, it is accepted the plaintiff continues to suffer constant neck pain and restrictions and that the consequences of his neck condition are more than significant or marked.
149 Further, counsel for the defendants conceded that the plaintiff’s evidence was largely acceptable, and the defendants would not be asking the Court to make any significantly adverse finding as to his credit.[32]
[32]T49
150 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).
151 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.
152 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
153 “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.
154 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.
155 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.[33]
[33]See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
156 The plaintiff’s claim in relation to loss of earning capacity related to both the tablet injury and the assault.
157 As the relevant matters are somewhat simpler in relation to the assault, I will consider that application first.
Case No. CI-17-05161
158 The parties agreed the “without injury” earnings figure is $109,233[34] ($2,100 per week) which is 60 per cent of the current wage rate for an operational paramedic in the range of $150,000.[35] The consensus of medical opinion is the plaintiff does not have the capacity to work in that role.
[34]T1
[35]T33; Whilst counsel for the plaintiff did not take issue, it seems even working full time in this role, the plaintiff would suffer the requisite loss
159 I accept the plaintiff is a hardworking, motivated man, as demonstrated by his return to work in such a short time after the first operation, and his determination to continue in his position with the first defendant following the second operation.
160 Whilst a number of jobs were suggested by CoWork, counsel for the defendants effectively relied on the role of sales representative only as working full time in that position, $101,712 per annum or $1,956 per week, the plaintiff would not suffer the requisite loss. Working in any of the other suggested roles on a full-time basis, his application would still succeed.[36]
[36]T33
161 Counsel for the defendants submitted the plaintiff was suitable for this role, relying on his evidence that he had an unlimited ability to sit, stand and walk, and could drive for two hours.
162 Whilst the plaintiff lived in Anglesea, the vocational assessor had identified thirteen sales jobs in Geelong and the surrounds.[37] Further, the plaintiff would not have to constantly be on the road, and he would have an ability to self-manage. He had agreed when details of this job were put to him that it did not involve duties he could not do.[38]
[37]T49
[38]T50
163 In response, counsel for the plaintiff relied on Dr Mullen’s view that the sales representative role was among a number of jobs that would be unsuitable for the plaintiff because of the driving involved.
164 It was submitted, whilst the plaintiff has had experience as a paramedic, that would not equip him to be a sales representative selling medical equipment.[39]
[39]T52
165 Taking into account all the evidence, I accept that the plaintiff dos not have the capacity to work full time in the suggested sales representative role.
166 In my view, given the plaintiff’s constant but variable pain, with frequent flare-ups and his significantly disturbed sleep, he would be unable to attend full-time work on a reliable and consistent basis. Tiredness and vulnerability would make him unsuitable for a sales role. Further, the sales and health promotion roles are not ones for which the plaintiff has the necessary training or experience. Although he has worked for three decades in the ambulance service, he has no specialist medical or scientific knowledge.[40] The driving involved in the sales role would also cause him significant difficulty, as his general practitioner confirmed.
[40]Health Promotion Officer requires a Master of Public Health
167 Whilst Dr Yong considered the suggested jobs were suitable for the plaintiff, he did not consider the plaintiff to have a capacity for full-time work. The “aim” would be to return to full-time duties over a period of time, which Dr Yong considered to be three to five months.
168 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
169 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 him 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).
170 In all those circumstances, I am satisfied the plaintiff does not have the capacity to earn in excess of $105,000 per annum or $2,019 per week for the foreseeable future.
171 Accordingly, he has suffered the requisite loss and leave is granted in relation to “the assault” application.
Case No. CI-16-02580
172 This application is somewhat more complicated, with counsel for the plaintiff conceding it is not possible to point to a specific loss of 40 per cent and also conceding had the plaintiff’s application relating to this injury been heard in November 2015, prior to the assault, he would not have satisfied the statutory test.[41]
[41]T36
173 In opening, counsel for the plaintiff submitted the tablet injury rendered the plaintiff vulnerable, and as such, it materially contributes to his present loss of earning capacity.[42]
[42]Altona Bus Lines v Lococo [2002] VSCA 159; T2
174 Counsel for the plaintiff submitted had the plaintiff not been vulnerable as a result of the tablet injury, he would not have ended up out of the workforce after the assault.[43]
[43]T40
175 Reliance was placed on Mr Drnda’s opinion, comments made by the general practitioner about the plaintiff’s condition leading up to the assault, and also Mr Wallace’s comments in his 2013 report that the plaintiff would be wise to consider a change of employment.
176 Counsel for the defendants submitted there was no demonstrable loss of earning capacity arising from the tablet injury as there was from the assault. Further, there was no good evidence to suggest that, absent the assault, the plaintiff would not be still working as a paramedic.[44]
[44]T5
177 Counsel submitted the plaintiff was required to identify the impairment from each injury and establish it was “serious”.[45] If the plaintiff sought to aggregate the consequences of the two injuries, it was impermissible to do so.[46]
[45]Petkovski v Galletti [1994] 1 VR 436
[46]T34; T36; see Buchanan and Chernov in ToHa Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65
178 Counsel for the defendants submitted that to consider whether the tablet injury was “a cause” of the plaintiff’s present incapacity necessarily entailed aggregation, because the plaintiff had pain and restriction in his neck, but that never developed any further until the assault, and was not going to. The plaintiff could not satisfy the 40 per cent test before the assault, because whatever his neck pain and restriction, it was not productive of a 40 per cent loss.[47]
[47]T35
179 In those circumstances, counsel for the defendants submitted, the only way the plaintiff’s argument could succeed is for the Court to take the consequences that flow from the assault and aggregate them with what was pre-existing, an approach which is impermissible.[48]
[48]T36
180 Counsel for the defendants distinguished the case of R J Gilbertsons Pty Ltd v Skorsis[49] on the facts. In the present case, there are two separate and distinct incidents, whereas in Skorsis, there was an underlying shoulder condition “which carried with it in train the inevitability that the plaintiff would ultimately be rendered incapacitated”.[50]
[49][2000] VSCA 51
[50]T37
181 It was submitted the plaintiff succeeded in Flintrop v The Austral Brick Co Pty Ltd[51] because he had, after the first injury, even before the second, demonstrated a loss of earning capacity which would satisfy the test.[52] This was described by counsel as a critical difference from the circumstances in the present case.[53]
[51] [2016] VCC 2114
[52]T38
[53]T39
182 Whilst Judge Wischusen in Flintrop accepted the plaintiff could succeed if he established the first injury was a cause of incapacity following the second injury, counsel for the defendants submitted there is a factual difference in the present case, as there is no good evidence to suggest the plaintiff would have done anything other than continued on as a paramedic, absent the assault.[54] It was submitted there was not a conceptual difficulty with the approach taken by Judge Wischusen, but it was very much a fact based one.[55]
[54]T40
[55]T41
183 The defendants “resisted factually” that the tablet injury is a cause of the plaintiff’s present incapacity.[56] It was submitted there was no good evidence to this effect, and that in 2012, Mr Wallace had the directly opposite view when he believed the plaintiff’s long-term prognosis was excellent, although stating, following examination in April 2013, that heavy hands-on paramedical work would be more likely to give the plaintiff trouble.[57]
[56]T41
[57]T44
184 Counsel for the defendants submitted the analysis relied on by the plaintiff would have some validity if the plaintiff’s evidence was that he went back to paramedical work which was heavy and, over time, his neck just broke down and did so to the point where he was no longer able to engage in the work –“but we’re talking here about a frank incident where the gentleman goes overnight from a position of – on working fulltime paramedical duties with very slight modifications … going skiing … [and] planning a five day extravaganza of kayaking” … [to] no longer [being able to] engage in any of those duties because of this assault”.[58]
[58]T45
185 Further, the plaintiff deposed “chapter and verse” in his affidavit to the change in his symptomatic presentation and the restriction in his employment by reason of the assault.[59]
[59]T45
186 Counsel for the defendants also submitted Mr Drnda’s opinion was of very little assistance, because, read literally, he said the tablet injury caused the plaintiff’s neck to be vulnerable, and on one reading, said the assault did nothing – a situation which was clearly factually incorrect.[60]
[60]T46
187 Mr Drnda also said as a result of the assault, there was an aggravation of an occurrence that had previously largely settled, so the tablet injury had gone by the time of the assault. It was submitted it was very hard to understand exactly what Mr Drnda was saying and that his report was inherently contradictory or internally contradictory, and was of no assistance.[61]
[61]T47
188 It was submitted Dr Mullen’s view was more helpful, certifying the plaintiff fit for full duties with modifications right until 2015. There was also the plaintiff’s evidence that he did not have a concern that he would be able to continue working as a paramedic until the assault, and in general terms, he said the assault altered all that, changing his presentation and making it impossible to continue work.[62]
[62]T47
189 It was submitted the present case was not one of the unmasking of an inherent vulnerability by reason of exposure to a course of heavy work. “[This is a case of] a man who gets punched in the head and develops neck pain … in circumstances where he’s exhibited very little, if any, symptoms [or problems] that [were] going to impair his employment at any time up until then.”[63]
[63]T47
190 It was submitted, in terms of the vulnerability issue, Altona and Skorsis were factually different. Those cases involved workers who had suffered injuries at times they were not responsive to an entitlement to claim for common law damages, and earlier injuries had set in train significant degenerative processes which were ultimately unmasked by exposure to prolonged work.[64]
[64]T48
191 In Lococo,[65] the second incident was fairly trivial,[66] compared to the situation in this case where the plaintiff was punched very heavily in the face.[67]
[65]Supra
[66]The plaintiff standing up whilst wearing a seatbelt
[67]T48
192 Further, it was submitted if the plaintiff worked full time in the health promotion job, he could not suffer the requisite loss as the threshold was around $64,000.[68]
[68]T51
193 Counsel for the plaintiff submitted this was a different case to AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[69] in that there was good evidence the plaintiff was experiencing difficulties in maintaining his role as an operational paramedic before the assault, whereas in Filipowicz that had not been argued in the first instance, and there was no evidence in that regard.[70]
[69](2012) 34 VR 309
[70]T54
194 Reliance was placed on the plaintiff’s regular flare-ups and the fact that Dr Mullen had certified the plaintiff being off work for twenty-eight weeks over three years before the assault. The plaintiff was referred again to Mr Wallace in 2013 when he had a recurrence of right arm problems that year.[71] Further, following that examination, Mr Wallace thought the plaintiff might be wise to change his future work plans. There were then two years of the plaintiff’s increasing problems deposed to.[72]
[71]T55
[72]T56
195 Further, the plaintiff felt, all things being equal, he would have been able to get back to work after the assault but for the earlier level of damage to his neck. Had he not been assaulted, he was hopeful of being able to continue doing what he was doing.[73]
[73]T57
196 It was submitted that the Court had to look at the tablet injury and contemplate what might have been the case, bearing in mind all of those indicators of problems that existed before. Whilst counsel for the plaintiff conceded Skorsis involved a degenerative condition, it was submitted the principle that one derived from that case was that it was clear that an earlier injury can be productive of serious injury consequences as well as a later one.[74] Counsel disagreed that the plaintiff could only succeed where there was an underlying degenerative condition made worse by a second injury.[75]
[74]T58
[75]T58
197 It was submitted Judge Wischusen accepted, in Flintrop,[76] that two injuries can nevertheless be the cause of the same serious injury consequences measured today, where a later injury “clearly changes the landscape in terms of capacity”.[77]
[76]Supra
[77]T59
198 Emphasis was placed on the evidence of Mr Wallace, the general practitioner, and the plaintiff’s own evidence, as well as Mr Drnda’s view, and the plaintiff’s vulnerability.[78]
[78]T59
199 Counsel for the plaintiff also relied on Judge Wischusen’s comments in Flintrop[79] when he said he was far from certain that Filipowicz[80] stood for the proposition that there could never be a case about sequential injuries where a retained capacity for work, persisting after the first injury in time, would prevent it from ever being established that the first could not be a serious injury because of the later injury also being a cause thereof.[81]
[79](supra) at paragraph [84]
[80]Supra
[81]T60
200 In his July 2016 report, Dr Mullen noted that the recurrent neck condition aggravated by the assault had become to be a problem.[82] He seemed to describe the assault exacerbation as now having settled in some respects, and so, reading that, one would get some support for the idea that it is the underlying chronic condition that is limiting.[83]
[82]T60
[83]T61
201 Whilst counsel for the plaintiff conceded Dr Mullen’s opinion was a bit confusing, it was submitted that he was really saying the plaintiff had had recurrent exacerbations before the assault. The assault had then led to significant treatment and further surgery, and the plaintiff was back in the position he was before, because of a chronic condition with recurrent exacerbations that he was managing.[84]
[84]T61
202 In support of the “vulnerability” argument, counsel for the plaintiff relied on Mr Hall’s view that more durable surgery is needed, there having been surgery after the tablet injury that had not stood up well to time, given all the events.[85]
[85]T62
203 It was submitted that Mr Drnda was of assistance to the plaintiff. He just answered the questions posed by the plaintiff’s solicitor and he concluded that the tablet injury was still a cause of the plaintiff’s present incapacity.[86] It was submitted this was the analysis Lococo picked up. It was not permissible to aggregate two injuries. Each injury had to be considered separately. But when one looked at the first in time injury, there are things about it that can be taken into account when considering the ultimate impairment.[87]
[86]T63
[87]T63
204 Counsel for the plaintiff submitted there were two ways of showing the tablet injury might be “serious”. One was as to say “If you hadn’t had the first injury, the second would not have happened”.[88] However, that was not the case in Lococo, nor the situation in the present case, as the tablet injury did not somehow make the assault happen.[89]
[88]Altona Bus Lines v Lococo (supra) at paragraph [12]
[89]T63
205 The second way, also analysed in Lococo, which it was submitted should be applied in this case, was that the additional effects that occur in the assault occurred because of the vulnerability consequent on the tablet injury.[90]
[90]T64
206 In this regard, reliance was placed on Dr Mullen and Mr Drnda, who considered that the plaintiff’s vulnerability from the first injury was a cause of the aggravation following the assault. On this basis, it was submitted there was evidence to follow the approach in Lococo.[91]
[91]T65
207 In response, counsel for the defendants pointed out the temporary exacerbation argument proffered by Dr Mullen merely highlighted the problem, because then the assault would not be a serious injury if it settled down, and the plaintiff’s current presentation related to the tablet injury.[92]
[92]T65
208 Secondly, there was no medical evidence to the effect of any vulnerability giving rise to additional effects along the lines of “Well, you’d just expect a man who gets punched in the head in this fashion to only have neck problems in this degree, and here are the additional symptoms which you find from the earlier occurrence”.[93]
[93]T65
209 Taking into account all the evidence, I am not satisfied that the tablet injury is a cause of the plaintiff’s loss of earning capacity as at the date of hearing.
210 As counsel for the plaintiff conceded, if this application had been heard before the assault, it would have failed and it could not have been established the plaintiff suffered the requisite 40 per cent loss.
211 The plaintiff was working full time, albeit on modified duties, until the time of the assault. As he deposed in some detail, it was the assault that significantly changed his neck condition, resulting in an inability to work to the present and interfering with a range of other activities to a significant degree.
212 I am not satisfied, that absent the assault, the plaintiff would not have continued to work as a paramedic, albeit with flare ups of his condition at times, as had been the case in the three years prior thereto. The plaintiff’s evidence as to his work capacity is to this effect. Further, in addition to working full time, albeit on modified duties using a stand-up desk and doing no tablet work, the plaintiff was able to go on a skiing holiday in September 2015 and had planned an arduous kayaking trip across Bass Strait early in 2016.
213 There is no medical evidence that the plaintiff would not have come to surgery after the assault had it not been for the tablet injury or that the effects of the later injury would have not have been so serious but for the tablet injury.
214 This is not a case of a progressive underlying disease, the consequences of which become apparent after a period of heavy work. The assault is a frank incident, not part of the work process as such.
215 The plaintiff’s situation has changed significantly since the assault, as he described in detail in his recent affidavits. Thereafter, his pain has been more severe and frequent and now extends to the left as well as the right side of his neck. Further, movement of his neck to the left is now restricted. He requires more frequent and stronger medication and has resumed physiotherapy since the assault. Problems with sleep have increased.
216 Having made these findings, it is not necessary to consider the suitability of the two roles suggested for the plaintiff.[94]
[94]Health promotions officer and sales representative
217 Taking into account all of the evidence, I am not satisfied that the tablet injury is a cause of the plaintiff’s present loss of earning capacity. Accordingly, the application is dismissed.
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