Radojkovic, Slavko v N S L Australia Pty Ltd
[2009] VCC 999
•25 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03895
| SLAVKO RADOJKOVIC | Plaintiff |
| v | |
| N S L AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O’NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 and 5 June 2009 |
| DATE OF JUDGMENT: | 25 June 2009 |
| CASE MAY BE CITED AS: | Radojkovic, Slavko v N S L Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0999 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application – s.134AB Accident Compensation Act 1985 – injury to lower spine – whether the consequences of injury achieve the “very considerable” level in respect of pain and suffering and economic loss.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | G P Z Proprietary-Lawyers |
| Mr M Gray | ||
| For the Defendant | Mr P D Elliott QC with | Minter Ellison |
| Ms R N Annesley | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to his spine, in particular in March 2004 and March 2005 while working as an extruder operator for the defendant. The work he was undertaking at the time included heavy lifting.
2 He ceased work after the second incident and then resumed work as a delivery driver for another company in October 2006. He has retained that employment to the present time.
3 As a result of injury, he claims constant pain in his lower back with radiation of pain down the right leg. Radiological evidence shows a disc protrusion at the L5-S1 disc level.
4 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant over the period from June 2001 until March 2005, and in particular when he suffered assaults to his spine in the course of his employment on 17 March 2004 and 7 March 2005.
5 Mr Richards on behalf of the plaintiff identified the body function said to be lost or impaired as the lower spine. The application is thus brought under sub- section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.
7 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the spine.
8 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his “without injury” earnings in the three year period before and after injury, as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
9 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, affidavits of the plaintiff, medical reports, radiological investigations and various financial documents were tendered into evidence. I have read all the tendered material.
10 On behalf of the defendant, Mr Elliott outlined the position of his client in response to the application as follows:
•
The plaintiff had suffered a soft tissue injury to his back and it was acknowledged there had been an aggravation of an underlying degenerative condition.
•
The findings on radiology reflected that underlying condition, rather than any particular trauma to the spine.
•
The plaintiff was presently undergoing no significant treatment and had not done so for a considerable period.
•
The plaintiff had returned to work on occasions working long hours in a job which required physical effort and capacity.
•
The plaintiff had the physical capacity to work hours beyond those he was presently undertaking.
•
Generally, medical opinion suggested the plaintiff had a capacity for full- time work.
•
When compared to other cases in the range, the consequences to the plaintiff as a result of injury could not be said to be “very considerable”.
The Relevant Background
11 The plaintiff is now fifty three years, having been born in Yugoslavia in 1956. He migrated to Australia in 1989, having previously worked as a factory hand, as a chauffer and for a period undertaking national service in Yugoslavia. He is a married man with a 16 year old daughter.
12 After arriving in Australia, he worked in various employments as a machine operator, factory hand and in various similar manual jobs. On 25 June 2001, he commenced employment with the defendant as an extruder operator.
13 For the year ended June 2004, he was working a 60-hour week earning $18 per hour with a gross income in that year of $58,735.
14 In 2000, he suffered back pain working for a previous employer. He received treatment from his general practitioner who referred him for x-rays.[1] Aside from some minor osteophytic lipping at L3-4, L4-5 and L5-S1, there was no other abnormality. The plaintiff had physiotherapy and was absent from work for two to three weeks. He said that he substantially recovered from this injury, although in the history to various doctors from that time onwards he had lower lumber pain from time to time.
[1] Plaintiff’s Court Book (“PCB”) 22
15 Aside from this back pain, he was otherwise fit and healthy prior to injury in March 2004.
16 In his affidavits[2] the plaintiff does not describe any particular recreational, domestic or social pastimes he enjoyed prior to injury.
[2] PCB 15-21
The Injury and its Consequences
17 The plaintiff’s current pain and restrictions in his lower back occurred as a result of three incidents. The first is the incident which occurred in 2000, and is referred to in paragraph 14 herein. To various doctors, he complained of lower back pain going back over several years.[3] To Mr Flanc,[4] surgeon, he stated that after the incident of 2000 (referred to as 1999), he said he was left with slight pain in the lower back which he felt intermittently every three to four weeks.
[3] See reports of Dr Romero, PCB 30; Dr Clements, PCB 84; Mr Rogers, PCB 86; Dr Hjorth, PCB 98.
[4] PCB 35
18 The second incident occurred on 17 March 2004. The plaintiff suffered a significant aggravation in lower back pain when he was lifting 25-kilogram sacks of materials in the course of his employment. He went to see his general practitioner, Dr Romero[5] and was prescribed anti-inflammatory medication and sent for physiotherapy. He was certified as unfit for duties over a period of several weeks in March to April 2004. He apparently returned to work and then went to see his general practitioner again in October 2004. An x-ray was undertaken[6] which showed mild spondylotic lipping at L4. There is no significant change seen on this x-ray as compared to that taken in 2000[7]. The plaintiff was certified as fit for light duties for a period of approximately a week at that time. He claimed there were no light duties available and his work from that time until March 2005 involved heavy work, including bending and lifting heavy bags of materials. In June and July 2004 he had the assistance of two fellow workers, but these workers were terminated and he then continued to work long shifts lifting considerable weights, up to March 2005. Over this period he claims that his back pain persisted.
[5] PCB 33
[6] PCB 23
[7] PCB 22
19 The third incident occurred on 7 March 2005. He was lifting boxes weighing approximately 15 kilograms when the pain became significantly more severe. He went to see Dr Romero on 10 March 2005 and Dr Romero arranged for a CT scan of the lower spine.[8] This showed a posterior disc bulge at L5-S1 with degenerative facet joint changes. Dr Romero certified him as being unfit for work and he had physiotherapy and prescription pain-relieving medication.
[8] PCB 24
20 His pain did not improve over the next several weeks and in fact following this third incident, he felt pain going down his right leg.
21 He was referred to Mr Myron Rogers, neurosurgeon, on 31 March 2005.[9] Mr Rogers noted that the plaintiff was considerably impaired by pain and restricted in movement of the lower spine. Subsequently, an MRI scan of the lumbar spine was undertaken[10] which showed left paracentral disc protrusion producing mild indentation of the theca. Mr Rogers said this showed mild degenerative changes at that level without any nerve compression and therefore considered there was no role for surgical intervention.
[9] PCB 86
[10] PCB 25
22 He referred the plaintiff to Dr Richard Clements, rehabilitation physician, on 2 June 2005.[11] Dr Clements noted the plaintiff had been having physiotherapy which he had not found particularly helpful, and in addition hydrotherapy. Over this period, the plaintiff had remained off work as there were no suitable duties available to him. In fact, the defendant company went out of business some short time after his injury, and he did not resume with it after March 2005. Dr Clements recommended a pain management assessment, but this was refused by the claims agent as liability for the claim had been denied. Dr Clements suggested conservative treatment.
[11] PCB 84
23 As time progressed, the plaintiff remained under the care of Dr Romero and in August 2006, Dr Romero arranged for the plaintiff to undergo a further CT scan of the lumbar spine[12] which showed the changes at L5-S1 had been mildly progressive compared to the previous study. It was thought there was potential compromise of the exiting nerves at that level.
[12] PCB 27
24 Although there is no further report from Mr Rogers, the plaintiff returned to see him in 2007, and a further MRI scan was undertaken.[13] This again noted the small broad-based disc protrusion at L5-S1 without neural compression. There was said to be mild intervertebral degenerative changes throughout the lumbar spine.
[13] PCB 28
25 The plaintiff continued to complain of back pain which fluctuated in intensity depending upon the activity in which he was involved. He claimed his sleep was disturbed and the pain was more severe in the mornings when he got out of bed.
26 However, in October 2006, he commenced employment as a delivery driver with a company, “Plega”. He obtained this employment as his wife worked for that company. He has continued to work as a delivery driver from that time through to the present. He usually drives a company van, although on occasions a larger van is hired. The company is involved in the manufacture of beds and large chairs, and his job involves going to the depot, having the beds and chairs loaded into the truck or van, and delivering them to various places around Melbourne, throughout country Victoria, and on occasions interstate. He said that sometimes he had to bend in the course of his work but most of the time received assistance. He would occasionally carry single mattresses which did not weigh very much, which he was able to lift and move without particular difficulty. He was always provided with assistance when it came to loading and unloading the heavier items, including beds large mattresses and heavy chairs. At present he is paid an hourly rate of $16 per hour and the amount of hours he works varies. There have been occasions when he has worked 44 hours per week, and other occasions where he works much less. He is employed as a sub-contractor and submits invoices claiming the hourly rate of $16, and he is paid on the basis of those invoices. For the year ended June 2007, he earned approximately $14,000 gross. In the following year, to June 2008, he earned $16,000 gross. The invoice books of more recent times were tendered into evidence.[14] The plaintiff stated that he would go to the depot each morning at about 7.00 am to see what work was available for the day. He said that the boss was flexible, allowing him to work less hours and providing him with assistance to load and unload the beds and chairs. Sometimes the work would involve him travelling considerable distances, including to Wodonga, and even to Canberra. He would stop regularly, and on the Canberra trip would stop overnight in Albury. He said if the deliveries were in suburban Melbourne, he would always be given a “jockey” to assist with the loading and unloading. On the longer trips, the plaintiff would go by himself but would always have assistance to load at the factory, and someone would be retained at the other end to assist in the unloading. The plaintiff would not even assist in the carrying of the large chairs or large mattresses and beds. Sometimes a local handyman was hired, and in every country and interstate journey, help was at hand to unload.
[14] Exhibit 2
27 The plaintiff had a forklift licence, and would drive the forklift to load the beds into the van. He would be responsible for tying down the load.
28 The plaintiff was cross-examined at length about the hours he worked of recent times, as was reflected in his invoice books. Over the period 27 April to 8 May 2009, he worked 51 hours. Over the period 8 May 2009 to 29 May 2009, he worked 68 hours.
29 It was put to him that he could work full-time in this or another similar job. He said that he thought he could probably work 20 or 22 hours per week and that if he worked a long shift and travelled interstate, he would need some time to recover because of ongoing back pain.
30 The plaintiff receives little in the way of current treatment. He no longer sees Dr Romero, who retired in 2007. He does not see any current treating general practitioner. In the past, he has been prescribed Panadeine Forte and anti- inflammatory medication, but no longer takes such medication. He buys Panadol, over the counter, and takes six to ten per day. He no longer receives physiotherapy nor any other form of treatment. He does not see any specialists.
31 He claims that his lower back pain is ongoing with referred pain into the right leg, although his back pain is the worst. He says the pain fluctuates and is worse in the mornings. If anything, he claimed that the situation was becoming worse.
Medical Opinions
32 There is no issue between the parties that the plaintiff’s back injury arose as a result of the three incidents referred to above. As at the date of the first injury in 2000, the plaintiff was not working for the defendant, but I am satisfied that the incidents of 2004 and 2005 did materially contribute to the consequences from which the plaintiff is now suffering. Various of the medical practitioners attempted to apportion responsibility for the back injury to the various incidents, and most are of the view that the second and third incidents are mainly responsible. In any event, I am satisfied that the incidents of March 2004 and March 2005 did materially contribute to the consequences that the plaintiff now suffers.
33 Dr Romero[15] set forth his treatment of the plaintiff and his referral to the various specialists. He considered the plaintiff needed a rehabilitation program and by May 2007 thought that the plaintiff would be able to return to work in the future providing he did not undertake any heavy lifting or bending. Mr Flanc saw the plaintiff at the request of his solicitors over the period from 2006 to 2009.[16] He was of the view that the plaintiff had an underlying degenerative condition in his spine which was aggravated by the various incidents, particularly those of 2004 and 2005. He thought there were some non-organic factors in evidence as there was very marked limitation of spinal movement on examination.
[15] PCB 30-33
[16] PCB 34-60
34 In his report of 9 March 2007, the plaintiff did not inform Mr Flanc that he had obtained employment the previous October. At that time he considered that the plaintiff had no current work capacity. In the next report of February 2008,[17] Mr Flanc was advised, apparently by the plaintiff, of his work for Plega. At that time he did consider the plaintiff had the capacity for very light employment in a part-time position as a delivery driver. In his final report of March 2009,[18] Mr Flanc obtained a history that the plaintiff was working 6 hours a week, although he had on occasions reached 22 hours in one week. He considered that he had the capacity to maintain 6 hours of employment a week to a maximum of 22 hours. He said[19] that the plaintiff may well suffer significant increased back pain if he worked beyond that limit. This history is clearly inaccurate as the plaintiff had worked up to 44 hours a week, including travelling very considerable distances. I am of the view Mr Flanc’s opinion as to the plaintiff’s work capacity is flawed because he did not obtain an accurate history. The plaintiff did not inform Mr Flanc of his employment when seen in 2007, and did not tell him of the more extensive hours he was working subsequently.
[17] PCB 50
[18] PCB 57
[19] PCB 60
35 The plaintiff was examined by Dr Paoletti,[20] psychiatrist, at the request of his solicitors, and Dr Entwisle,[21] psychiatrist, at the request of the defendant. Dr Paoletti thought the plaintiff was suffering from a chronic adjustment disorder as a result of his back pain but that his work capacity depended upon the physical symptoms. Dr Entwisle did not consider the plaintiff was suffering any psychiatric disability. Neither report is of particular assistance, aside from the histories obtained, as the claim is brought in respect of physical injury.
[20] PCB 61-70
[21] DCB 29-31
36 The plaintiff was examined between April 2006 and March 2009 by Mr Flaim, surgeon.[22] In his first report,[23] Mr Flaim noted that the CT scan of March 2005 showed a central disc protrusion at the L5-S1 level. Mr Flaim initially considered[24] that the plaintiff was incapacitated for heavy physical work but that he could return to work in alternative duties excluding repeated bending and lifting. When he again examined the plaintiff in February 2007,[25] he thought that the cause of the ongoing low-back pain was the presence of chronic degenerative change in the lower lumbar spine which had been aggravated in the course of his work. He considered the plaintiff remained unfit for employment and it was less likely that the plaintiff would be able to resume employment. Again, the plaintiff had not told Mr Flaim at this point in February 2007 of his resumed employment in October 2006. When again examined in April 2008,[26] the plaintiff told Mr Flaim there had been no significant change in his symptoms and Mr Flaim noted that upon physical examination there was an overreaction with restricted movement. By this time Mr Flaim had been advised that the plaintiff had resumed work. He obtained a history that the plaintiff was no longer receiving treatment from his general practitioner and that his work included driving a van or a truck and delivering adjustable beds. He considered that the reaction to physical examination showed severe restriction which he thought reflected anxiety rather than an underlying organic problem. He considered that the degenerative changes shown on investigation were not unexpected in a person of his age. He did not think there was any clinical nor radiological evidence of neurological involvement. He considered the plaintiff capable of work with a capacity to lift at least 20 to 30 kilograms and a capacity to bend and stoop.
[22] PCB 71-83
[23] PCB 72
[24] PCB 73
[25] PCB 74
[26] PCB 78
37 When finally examined in March 2009, the plaintiff complained to Mr Flaim that his symptoms were worse. There was radiation of pain into the right leg and the plaintiff suffered aggravation of his pain, particularly when lifting. Mr Flaim on this occasion[27] had the strong impression that the restrictions of movement were related to anxiety rather than to structural disease of the back. He found no abnormal neurological signs in the legs, and concluded that the plaintiff’s back and leg symptoms were likely to be causally related to the disc prolapse evident at L5-S1. In relation to work capacity, he said that the plaintiff could clearly work on a full-time basis in light physical work but should have limitations, including avoiding repetitive bending and twisting and a lifting limit of between 10 and 20 kilograms.
[27] PCB 82
38 In his report of 17 July 2006,[28] Dr Clements referred to his rehabilitation assessment and treatment. He said that at the time he saw the plaintiff he had no capacity for full-time heavy duties as a machine operator. He said the plaintiff may be able to tolerate light duties, but given that his experience was in heavy manual labour and that his sitting tolerance was poor, it would be doubtful that the plaintiff could sustain a light duties job. Dr Clements’ opinion pre-dates the plaintiff’s resumed employment in October 2006.
[28] PCB 84
39 As stated, the plaintiff was treated by Mr Rogers in March 2005 on only one occasion. He noted the mild degenerative changes at L5-S1 without neural compression and considered the plaintiff had suffered an aggravation of pre- existing degenerative changes in the lower lumbar discs. These changes, he said, had been longstanding. He did not offer any opinion as to work capacity.
40 The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, over the period from February 2007 to March 2009.[29] He noted lower back pain radiating into the right leg with altered sensation to the right foot. He noted the plaintiff held his back in an extremely stiff position. Upon examination of the MRI scan, he noted an L5-S1 prolapsed intervertebral disc of moderate size on the left side. He noted the conundrum of symptoms to the right leg given that the prolapse was to the left. He considered the plaintiff had developed patterns of illness behaviour but conceded that he had suffered a lumbar disc injury. In his second report of February 2008,[30] he thought the plaintiff’s ongoing symptoms to the right leg consistent with nerve root canal stenosis involving the L5 nerve root. The MRI examination, however, did not support this diagnosis but the opinion was based on clinical examination. He considered the plaintiff suitable for very light employment and noted that he had been recently undertaking light work. It is noted in the first report of February 2007, he obtained no history of the plaintiff’s delivery driving work. In terms of work capacity, Mr Love stated the plaintiff had a permanent partial disability and for industrial purposes thought him to be 50 per cent disabled. Rather surprisingly, he continued:
“In view of the symptoms pattern I am of the opinion that he remains in
the diagnosis related estimates group of 100 per cent.”
[29] PCB 88-92
[30] PCB 91
I am uncertain what he means by this sentence. In his final report of March 2009,[31] he noted that the symptoms the plaintiff complained of remained identical to the previous examinations and that the plaintiff worked in a light duties capacity as a delivery man working one to three days a week, a few hours at a time. Again, this is an inaccurate history. Mr Love concluded that the plaintiff was 100 per cent disabled for industrial purposes and that he was not fit for any employment. Again, Mr Love did not obtain an accurate history in 2009 as to the plaintiff’s then work duties.
[31] PCB 92
41 The plaintiff was examined by Mr Conroy at the request of the defendant in January 2007.[32] Specifically in the history obtained, Mr Conroy noted the plaintiff had not worked since March 2005 because of the severe low-back pain. He claimed to be unable to do any bending, sitting or standing for long without aggravation of his back pain. He noted movements of the right leg were weakened with diminished sensation in a stocking-like distribution over the right leg. He noted the disc bulging at L5-S1. He considered the plaintiff had suffered an unresolved lower lumbar disc injury with referred pain into the right leg.
[32] PCB 93-96
42 The plaintiff relies upon the opinion of Dr Hjorth, neurologist, of March 2009.[33] At that time the plaintiff complained of lower back pain with pain and numbness down the right leg to the toes. He told Dr Hjorth he was working part-time doing deliveries and had earned $18,000 in the last full year. Dr Hjorth noted the L5-S1 disc prolapse on CT and MRI scans with some narrowing of the foraminae. Dr Hjorth considered the plaintiff well-motivated and that he had missed out on treatment in the nature of rehabilitation. He considered the plaintiff had the capacity to work in light duties but with some restrictions. His present work suited him, Dr Hjorth said, and there may well be other jobs which the plaintiff could do where there was no bending nor lifting. He did not believe the plaintiff could return to his original heavy work.
[33] PCB 98-100
43 On behalf of the defendant, Mr Nye, neurosurgeon, examined the plaintiff in May 2009.[34] He received similar complaints of ongoing chronic lower back pain with referred pain into the right leg, as had the other consultant practitioners. Mr Nye considered that the right leg pain was not consistent with true sciatica. He felt that upon examination pain behaviour was evident with very slow movement and the plaintiff holding onto objects. He claimed a gross restriction in all lumbar movements accompanied by pain behaviour signs and symptoms. He considered that the changes shown on CT were of a minor degenerative nature only. At L5-S1 he noted a mild central disc bulge with some facet joint degeneration. He concluded that there were functional elements associated with the plaintiff’s presentation in excess of what might be expected from the radiological findings. He considered the plaintiff had suffered an aggravation of mild degenerative changes in his lower back but with temporary consequences. He thought the plaintiff had a partial incapacity for work, and while he could not undertake his pre-injury duties, he was fit for alternative duties provided he did not repeatedly bend or twist, undergo prolonged sitting or standing and with a lifting limit of 5 kilograms from below waist level.
[34] DCB 10-15
44 Finally, the plaintiff was examined by Mr Polke, orthopaedic surgeon, on a number of occasions between April 2005 and April 2009.[35] He said the plaintiff was suffering a mild posterior disc prolapse at L5-S1 which had been contributed to by the work incidents. Mr Polke considered that from a physical point of view the plaintiff was suffering an incapacity for work, but that he was fit to undertake work providing it did not involve repeated bending nor heavy lifting of more than 10 kilograms. There was a significant psychological overlay which led to exaggeration of the plaintiff’s symptoms.
[35] DCB 16-27
45 In his final report of April 2009,[36] Mr Polke obtained a history that the plaintiff was working part-time, averaging 20 hours a week, delivering beds, but that he did no loading nor unloading. At that time the range of movements in the spine were extremely restricted. He considered that the degenerative changes in the spine may progress slowly with advancing years although the plaintiff’s prognosis for work was good. By this time Mr Polke considered that the plaintiff could perform his pre-injury duties and that he did not consider the plaintiff suffered a serious injury to his back and that the ongoing symptoms were related to degenerative changes in the spine but that the work component of his injury had ceased. He noted some abnormal illness behavior.
[36] PCB 26
Summary of Medical Opinions
46 I accept the opinion of most of the practitioners that the plaintiff had an underlying degenerative disease in his lower spine, particularly at the L5-S1 level. The work incidents, particularly of 2004 and 2005, significantly aggravated that disease, and while the plaintiff had some ongoing symptoms from the work incident of 2000, the more substantial pain and restriction of lumbar back movement commenced with the incidents in 2004 and 2005. I am therefore satisfied, on the medical evidence, that those incidents materially contributed to the plaintiff’s present incapacity.
47 I do not accept the opinions of Mr Flanc as to the plaintiff’s work capacity. In March 2007, relying on the history provided to him by the plaintiff, he considered there was no work capacity.[37] When apprised of the plaintiff’s work from October 2006,[38] he again did not get an accurate history and concluded[39] that the plaintiff could work a maximum of 22 hours a week. These opinions seem to be tailored specifically to the history that Mr Flanc obtained from time to time.
[37] PCB 48
[38] PCB 50
[39] PCB 60
48 Dr Clements[40] considered the plaintiff did not have the capacity for even light duties, but this was an opinion given at the time before the plaintiff had resumed work.
[40] PCB 85
49 In terms of work capacity, Mr Love appears of the view that the plaintiff is completely disabled from any form of work.[41] However, his reasoning is difficult to understand and even inconsistent.
[41] PCB 92
50 Mr Polke considered that the plaintiff had the capacity to return to his pre- injury duties. He is the only doctor to take this view and with the plaintiff’s complaint of pain in the back and referred pain into the leg, and the findings on radiology, this opinion appears quite inappropriate given the heavy nature of the plaintiff’s previous employment.
51 I prefer the opinions of Mr Flaim, Dr Hjorth and Mr Nye, that the plaintiff has the capacity for light duties provided he is restricted in terms of bending, twisting and lifting. Mr Flaim considers the plaintiff is capable of full-time duties. As I read the reports of Dr Hjorth and Mr Nye, they do not suggest any restriction in the hours. I accept that the plaintiff has a capacity for light duties within the restrictions mentioned, and on a full-time basis.
52 There is regular reference in many of the medical reports to functional symptoms displayed by the plaintiff upon examination. Although Dr Hjorth found the plaintiff a genuine person, I accept that there is an element of functional presentation given the regularity with which examiners find these symptoms. I bear in mind the legislation requires me to exclude any consequences of which the plaintiff complains which have their genesis in psychological reaction to physical injury.
53 I am not satisfied that the plaintiff’s complaint of right leg pain into his right foot is true nerve root compression or sciatica. Most practitioners accept there is no sufficient evidence on the scans, nor upon clinical examination of confirmed radiculopathy.
Credit of the Plaintiff
54 Surveillance film was taken of the plaintiff taken in October 2008 and April 2009. Much of the film was taken at the plaintiff’s work depot and showed him driving work vans. There was nothing inconsistent in the plaintiff’s movements nor tasks undertaken with his evidence to the Court, nor the history to the doctors. At one point a person was seen carrying a reasonably large mattress upon his shoulder, but I am not satisfied that that was the plaintiff. Mr Elliott did not argue to the contrary. The only aspect of inconsistency was at one point the plaintiff was seen to bend into the side of a van over a considerable period. All in all, I did not consider the video surveillance film made any significant impact upon the plaintiff’s credit.
55 Mr Elliott was critical of the plaintiff for failing to give accurate histories to a range of doctors whom he saw in 2007 that he re-commenced work duties in October 2006.[42] In fact, to Mr Conroy in January 2007[43], the plaintiff specifically stated that he had not worked since March 2005. In subsequent reports to these and other doctors, a history of the plaintiff’s employment was obtained. I am uncertain from these reports whether this was obtained from the plaintiff himself, or from other materials provided by his solicitors. I do not accept the submission by Mr Richards that this failure was as a result of some misunderstanding. It would have been clear to the plaintiff that his resumed work was a matter material to the opinion of the doctors. Further, even when the doctors did obtain a history, it was not accurate, particularly in early 2009, as to the nature, extent and hours of the plaintiff’s work duties. To no doctor did he say that on occasions he worked over 40 hours in a week. I am of the view that the failure to disclose his work in 2007, and the inaccurate histories given thereafter, were an attempt by the plaintiff to minimize the true position in relation to work capacity. In my view, his credit is adversely affected as a result.
[42] See reports of Mr Flanc, PCB 42; Mr Flaim, PCB 74; Mr Love, PCB 88-89
[43] PCB 93
Conclusions as to the Plaintiff’s Work Capacity
56 An affidavit of Ms Buccheri, solicitor, was tendered into evidence.[44] She deposes that she undertook an internet search from an Australian Government website of information relating to the areas of employment of delivery drivers, and couriers and postal deliverers. There was an advertisement for a job vacancy with a company, Green Light Couriers. The investigation of the Government website showed that for the job description “Delivery drivers” weekly earnings were $700, job prospects were said to be average, and the occupation size was 37,900 persons. Amongst the tasks referred to[45], there is reference to the employee assisting with loading of goods.
[44] DCB 53-62
[45] DCB 56
57 Under the heading “Couriers and postal deliverers”, the job prospects again are said to be average, the weekly earnings $800, and the occupation size 51,600 persons. Again, there is reference in the job description to loading and unloading mail conveyances. In the job advertisement for Green Light Couriers, there is no reference to the tasks nor duties involved, save that the applicant needs to be an owner/driver and has the capacity to earn up to $1,000 gross per week.
58 The difficulty with this evidence is that none of these occupations were the subject of opinion of the various practitioners who assessed the plaintiff’s work capacity. Further, in the brief descriptions given, there is reference to, particularly in regard to delivery drivers, the loading and unloading of goods. Given the absence of medical opinion, I am unable to conclude that the jobs suggested in this affidavit would be suitable for the plaintiff.
59 I have concluded that the plaintiff has the capacity to undertake full-time duties of the nature described, particularly by Messrs Flaim and Nye and Dr Hjorth, that is, lighter duties with restrictions in bending, twisting and lifting of heavier weights. I am of the view that that capacity is for employment working 38 or 40 hours per week, that is, a normal five day per week, eight hour per day job.
60 The plaintiff, in evidence, stated that he thought he could work 20 or 22 hours per week, in his present job, but not longer. I do not accept that evidence and believe he could work more hours were that work available to him. In evidence he stated that he attended the depot at seven o’clock each morning to determine what work was available. That is not consistent with someone capable of working only approximately half normal hours. The plaintiff was less than frank in the histories to most doctors about the hours he was actually working. I further bear in mind that I accept there is an element of functional presentation and that this, to some extent, amplifies the plaintiff’s symptoms.
61 The first matter to consider when assessing the plaintiff’s employment capacity is the first part of the formula prescribed by s.134AB(38)(f), that is, the plaintiff’s capacity for personal exertion in that part of the three years before and after injury as most fairly reflects earning capacity.
62 The plaintiff’s gross earnings over the relevant years were as follows:
Year ended 2002
Annual earnings, $46,370 Average weekly earnings, $892
Year ended 2003
Annual earnings, $50,444 Average weekly earnings $970
Year ended 2004
Annual earnings $58,735 Average weekly earnings $1,130
Thirty-six weeks prior to second injury
Annual earnings $39,243 Average weekly earnings $1,090
63 Mr Richards, on behalf of the plaintiff, submits that the appropriate figure is the average for the 2004 and 2005 years, or $1,110 gross per week. Mr Elliott contends that I ought average out the years from 2002 to 2005, an average of $997 gross per week. Mr Elliott says there were fluctuations in the plaintiff’s hours and that I ought to bear in mind that the defendant went into liquidation at some point shortly after March 2005. I am of the view the latter submission is not relevant given the section is concerned with work capacity, that is, the plaintiff’s physical ability to undertake work.
64 I have concluded that the submissions by Mr Richards in this regard are correct. The plaintiff’s work capacity is most fairly reflected in the period from July 2003 until the time of his second injury in March 2005. This period reflects the duties and the hours the plaintiff was capable of undertaking at the time. I conclude that the first part of the formula shows the plaintiff as having a work capacity which reflects in wages of $1,110 gross per week.
65 The second part of the formula requires me to determine the plaintiff’s capacity for suitable employment at the present time. As stated, I am of the view the plaintiff has the capacity to undertake lighter duties, with the restrictions referred to, on a full-time basis, that is, 40 hours per week. At the present time, the plaintiff is being paid $16 per hour for his employment as a delivery driver. For a 40 hour week, this translates to a gross weekly income of $640 per week. Given the nature of the duties that the plaintiff is currently undertaking, it is my view that it is appropriate to allocate $16 per hour when assessing present work capacity.
66 At the time of injury, the plaintiff was working 60 hours per week and earning $18 per hour. The additional hourly rate reflected the heavy duties and the long hours he was undertaking at the time.
67 The equation is thus as follows:
The plaintiff’s without injury work capacity
$1,110 gross per week by 60 per cent equals $660 gross per week.The plaintiff’s present work capacity for suitable employment
40 hours per week by $16 per hour equals $640 per week.Thus, the plaintiff’s capacity for employment, given his injuries, is reduced by more than 40 per cent. He thus satisfies the test for loss of earning capacity prescribed by s.134AB(38)(f).
Pain and Suffering
68 It is submitted by Mr Richards that, if I am satisfied the plaintiff has suffered a loss of earning capacity in excess of 40 per cent, he automatically satisfies the serious injury consequences in respect of pain and suffering. Mr Elliott did not seek to persuade me otherwise. There have been a number of decisions of this Court which conclude that, in the event the plaintiff satisfies the Court that he or she is suffering a loss of earning capacity of 40 per cent, then that is sufficient to attain the serious injury level in respect of pain and suffering.[46] Significantly, the comments of the then Minister Cameron in the Second Reading Speech[47] are as follows:
“The Bill also introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application, the court is not satisfied the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfies the pain and suffering threshold but not the loss of earning threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If, however, the worker suffers the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.”
[46] See Paterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, and the cases referred to therein.
[47] Hansard – 13 April 2000 – p.1005
69 Given the earlier decisions of this Court and the comments by Minister Cameron, I am of the view that, given the economic loss threshold has been satisfied, that is, of itself, sufficient to qualify the plaintiff as achieving the very considerable consequences required in respect of pain and suffering.
70 Accordingly, I am of the view the plaintiff succeeds in respect of both economic loss and pain and suffering, and leave will be granted for the plaintiff to issue common law proceedings in terms of the attached orders.
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