Radosevic v Visy Packaging Pty Ltd

[2014] VCC 290

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-12-05056

DRAGAN RADOSEVIC	Plaintiff
v
VISY PACKAGING PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 28 November, 2 December 2013
DATE OF JUDGMENT:	19 March 2014
CASE MAY BE CITED AS:	Radosevic v Visy Packaging Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 290

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:               Serious injury – impairment to the cervical spine – psychiatric impairment – pain and suffering – loss of earning capacity

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

Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Zepic [2013] VSCA 232; State of Victoria v Rattray [2006] VSCA 145

Judgment:                   Leave granted to the plaintiff to bring proceedings for damages for pain and suffering only.

Application in relation to loss of earning capacity dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Jewell SC with Mr R C Forsyth	Patrick Robinson & Co
For the Defendant	Ms M Britbart	Lander & Rogers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 3 May 2010 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).

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

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

4       The body function relied upon in this application is the cervical spine.  The plaintiff also relied upon a psychiatric impairment pursuant to clause (c).

5       The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[1][1998] 3 VR 833

[2](1995) 21 MVR 314

6       Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

[3](supra)

7       The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross-examined.  The plaintiff also relied on the affidavit of his co-worker, Mr Peco Gusevski.  The plaintiff’s general practitioner, Dr Zec, and Mr Gusevski were required for cross-examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

Outline of Section 134AB

8       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

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

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

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

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

13      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.

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

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

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

17      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor[5] in reaching my conclusions.

[4](2005) 14 VR 622

[5](2006) 14 VR 602

The Plaintiff’s evidence

18      The plaintiff is presently aged fifty-five, having been born in Croatia in January 1959.  He is married with one adult son.

19      After eleven years of schooling, the plaintiff undertook a three-year mechanic apprenticeship.  He never worked in that area, but instead got a job driving trucks with the fire brigade.  He left Croatia when the War started, before coming to Australia in 1993.

20      Upon his arrival, the plaintiff began working for the defendant and remained in that job until the said date.  It has been his only employment in Australia and from 1996, he worked as a machine operator, following practical and computer training.

21      From the time he started work, the plaintiff worked on the same machine as “Peco” (Peter Gusevski).  Mr Gusevski’s son also worked for the defendant.  The plaintiff and Mr Gusevski were friendly outside work.

Pre incident

22      The plaintiff deposed that prior to the said date, he had not required any substantial time off work by reason of injury.  From time to time, he had sustained minor injury and, on occasion, made WorkCover claims in respect of his low back.  These claims were minor and for limited periods. 

23      The plaintiff made a WorkCover claim as a result of lifting at work in September 2009.  He reported the incident to Wayne Tanner and could not remember if it was noted in the Injury Register.

24      In cross-examination, the plaintiff agreed that incident in fact happened in September 2007.  He made a WorkCover claim in relation to that incident, not multiple claims as he deposed.

25      The plaintiff denied having a chronic problem with his back in September 2007 as his doctor noted.  He did not know why that was noted by Dr Zec.  The plaintiff was alright maybe having a couple of days’ rest at that time.  On a couple of occasions he would have had two or three days off work.

26      From time to time, the plaintiff had slight back pain, which would last a short period, then would disappear; it was not the whole time.[6]

[6]Transcript (“T”) 21

27      The plaintiff deposed he had seen Dr Chan about ten years ago.  The plaintiff could not remember much about seeing him.

28      The plaintiff summarised the position, saying he had back pain a couple of times in the five years before the incident but it was not severe.[7]  During 2008 and 2009, he was fit and completely able to do work without pain.

[7]T35

29      The plaintiff deposed he had attended his general practitioner once after lifting a rubbish bag at home in January 2010.  In cross-examination, he corrected this date to 2000.  He could, however, remember lifting a table at home in 2010 and having some back pain, but that did not give him much of a problem and did not interfere with work.[8]

[8]T35

30      The plaintiff was not sure that a document he signed in 2000 related to the rubbish incident.  He signed it so he could take a sick day off and the defendant would not be responsible.

31      The plaintiff earned $52,000 in the 2007 financial year, gradually increasing to $60,399.00 in 2010.  He worked the permanent dayshift, earning $1,146.00 a week.  He also worked regular overtime on Saturdays every second week, on average earning about $250 a week.

32      As part of his duties, the plaintiff had to lift and pull quite heavy and stiff coils, fold them over and pick them up and put them into a dumpster.  The steel packaging he had to remove weighed in excess of 20 kilograms.

33      In April 2010, the plaintiff suffered a hernia as a result of this heavy lifting.  In addition, he had manual handling tasks involving wooden pallets, placing them in order to receive the cut steel.

34      On the said date, the plaintiff felt a sharp, stabbing pain in his lower back while bending to lift some of the packaging steel from ground level to put it into the dumpster (“the incident”).

35      The plaintiff suffered injury to his low back as a result of the heavy and repetitive nature of his work, particularly in the incident.

36      When the incident happened at about 10.00 or 11.00am, the plaintiff felt strong back pain.  He thought he would be alright and did no further lifting and had a rest.  Mr Gusevski saw what happened.  The plaintiff told his team leader.  The plaintiff did not do much at work, then went home.

37      The plaintiff was very uncomfortable sitting in the car after work and straight away he went to the doctor and made an appointment.  The plaintiff’s claim in respect of the incident injury signed by him on 17 May 2010 was accepted.

38      The plaintiff confirmed he reported the incident to team leader, Mr Smajic.[9]  He told Mr Smajic he had lifted something and hurt his back.  The plaintiff was not sure whether he filled a form out at the office at that time.  He was not one hundred per cent sure about subsequent discussions with Mr Smajic.[10] 

[9]T36

[10]T39

39      The plaintiff was asked about a number of histories as to onset of pain and whether he thought the pain was serious at the time.  He agreed he initially thought it was not anything serious, and he was feeling hot from doing work.  He denied that pain was similar to the type he had had before; it was different and stronger and he could not move properly.

40      The plaintiff denied he told Mr Myers he had a gradual onset of low back pain building up for the two years before.  He agreed, as he told Dr Nathar, in May 2010, it was a sudden onset at the time of the incident.  When he went to his car, there was more pain.  After he had stopped work, the plaintiff cooled down and felt severe pain in his back.[11]

[11]T44

41      Everybody knew about the plaintiff’s injury: the supervisor and Mr Gusevski.[12]  The plaintiff reported it the same day and took in a certificate the next day.  Everyone in his section knew he had hurt himself.[13]

[12]T46

[13]T47

42      The plaintiff told Dr Zec what happened in the incident and that he was lifting something.  He did not know why Dr Zec wrote “chronic” in his notes.[14]

[14]T49

43      The plaintiff did not think he talked to Mr Gusevski about the time cards issue on the said date.  The plaintiff denied that he was worried about meetings between Mr Street and workers about the time cards issue or that he would be called into speak to Mr Street about that same sort of thing.  The plaintiff denied he only reported the injury after he became aware of those meetings.[15]

[15]T48

44      The plaintiff was uncertain about his conversation with Mr Street when he took in his certificate on 5 May 2010.  At one time, the plaintiff said he agreed to come back to speak to Mr Street that afternoon, after he had been to the doctor.  The plaintiff later denied Mr Street had wanted to talk to him that afternoon.  He could not remember what Mr Street said.

Medical treatment

45      Dr Zec referred the plaintiff for physiotherapy and prescribed painkillers.  He advised the plaintiff to remain away from work to see whether his injury would settle.  The plaintiff had physiotherapy and medication; however, the pain did not settle as it had on previous occasions.

46      The plaintiff agreed there might have been an initial improvement, as reported by Dr Zec on 16 May 2010.  He might have said his pain was going up and down and it was not as severe.  The plaintiff initially took painkillers nonstop and he was prescribed brufen.  He took them when he needed them but not very often because of his stomach.[16]   

[16]T52

47      On 31 August 2011, during a visit to the osteopath, the plaintiff’s back pain became unbearable and he was referred to The Austin for further treatment.  He was prescribed a number of medications, including OxyContin and OxyNorm, to treat the pain, together with tablets to help with constipation.

48      The plaintiff obtains various prescriptions from practices in Frankston, Greenvale and another place in Tullamarine.[17]  Dr Zec moved to Frankston in September 2011.  The plaintiff sees him monthly, driving from Airport West.  When the plaintiff gets home from appointments, he feels terrible and he has to rest on the bed.

[17]T54

49      The plaintiff agreed he asked for a referral in 2011 and was given one to Dr Richardson.  He initially said he did not go because he forgot, and then said he had a problem that he could not be helped with and “why bother?”[18] He did not go to the second opinion because he concluded that other doctors could not do much for him and he would just be sent for further tests which would not help.[19]

[18]T66

[19]T68

50      The plaintiff was not sure whether he was prescribed Panadeine Forte once between October 2011 and July 2012.  He was not prescribed much medication because of his stomach and only gets a prescription when he asks for one.  He only took the medication frequently when he was in the early stages and more recently he takes it three or four times a week when he is in severe pain.[20]  The plaintiff has never been free of pain since the incident.  If he did not have the stomach problem, he would take them every day.[21] 

[20]T56

[21]T69

51      The plaintiff first started taking Zoloft in August 2013.  Earlier that year, Dr Zec put him on the anti-depressant, Sertraline, because he was becoming very depressed as a result of the continuing pain and inability to cope.

52      As the plaintiff found it difficult to take painkillers, mostly he attempted to manage any flare-ups by lying flat and resting. 

Progress of pain

53      When he swore his affidavit in May 2012, the plaintiff described constant low back pain extending down the back of his legs.  He had an unrelated medical condition of ulcerative colitis which made it difficult for him to take medication, so he was limited in how he could control his pain.  He took Panadeine Forte two to three times a day; otherwise his pain was too difficult to cope with.

54      The plaintiff’s pain varied, depending on his level of activity.  He suffered from increased pain when bending or attempting to lift even relatively light weights.  He had increased pain when he walked or stood for longer periods.  He found walking particularly difficult, as after some time, he developed worsening leg pain.  At times, his walking was affected and he often felt unsteady on his feet.

55      The plaintiff’s left leg pain was the worst.  It was not present all the time, but interfered with his ability to walk when it was present.

56      In his recent affidavit sworn 27 November 2013, the plaintiff deposed he continues to suffer with low back pain, pain going down to his buttocks, mainly down to the right leg into the foot, and also pain in his left foot.  The pain in his back is most severe in the right low back.  It varies between aching and cramping, and at times feels as if ants are crawling on his leg.  The pain is bad at night, and wakes him.

57      The plaintiff continues to get worse pain if he stands or walks for too long, and he has the same difficulties when sitting as previously described.  Bending and twisting cause increased pain, and he still has to avoid lifting any but the lightest weights.  His daily activities are badly affected by his injury, as previously described.

58      The plaintiff did not tell Mr Jones he was able to sit as long as he could.  He just said he could sit longer than he could stand and walk.  Maybe he could sit for half an hour; it depends.  He is still limited with bending and reaching, driving one to two hours, but it depends. 

59      The plaintiff had difficulty getting up from a sitting position if sitting for too long, particularly if the chair was low or soft.  He found it more comfortable to sit in an upright chair but could not sit still for long periods of time.

60      On the day of the hearing, the plaintiff was very, very sick, very tired.[22]  He felt horrible being in Court.  He felt like he was going to fall off the chair soon.[23]

[22]T61

[23]T68

Work

61      The defendant has never provided the plaintiff with lighter suitable duties, because after he was injured, he was dismissed. 

62      Following an unfair dismissal claim, the plaintiff signed a Fair Work Deed of Release on 23 June 2010.  Without admission of liability, the defendant agreed to pay the plaintiff $25,000 on a confidential basis.

63      Since the termination of his employment, the plaintiff’s doctor has discussed with him alternative employment that he may be able to manage, and he sought work that was suitable; however, he had not been able to find any work in any capacity.

64      The plaintiff had had some assistance from the WorkCover vocational people.  All the jobs he applied for required him to do some lifting, and the lifting restrictions that the doctor was certifying made him unsuited for those positions.

65      After the lack of success with WorkCover rehabilitation in finding work, the plaintiff had become quite depressed and lost motivation to keep looking for work, and could not think of any type of jobs he could manage.

66      The plaintiff believes he has really tried to get some other type of work that he could do.  At the request of the insurer, he attended vocational interviews and assessment by IPAR in November 2010 and the first half of 2011.

67      The plaintiff is aware IPAR considered he was motivated to seek another job within his medical restrictions, and he completed all of the job search tasks he was asked to do.

68      In May 2011, IPAR attempted to find the plaintiff a job with forty-one different employers, but it was unsuccessful.  No further attempts were made to retrain or rehabilitate him, although he was asked again to attend a different vocational assessor, Ayers Management Services, in August 2013, but no efforts were made to assist him.

69      The plaintiff does not believe he would be able to handle any manual work that he has the experience or training to do.  He thought he could try light work. 

70      The plaintiff was asked about a medical certificate completed by his doctor in November 2010.  He agreed then and now he has a lifting capacity of 6 kilograms.  He could no longer stand for two or three hours.  Standing and staying in the one spot and walking are very hard for him.[24]  He cannot sit for one to one and a half hours; it depends on the chair.[25]

[24]T57

[25]T58

71      The plaintiff does not know if he could do the jobs that have been suggested but he wants to try within his medical restrictions.[26]  He does not know whether he could work six or eight hours a day within those limits.  He has not tried.  He could try, but he did not think he could last doing that sort of work as his back was very bad now and was getting worse.  He now has very strong pain and gets a lot of cramps.[27]

[26]T59

[27]T59

72      The plaintiff would love to find a job but asked who is going to offer him work when he is so restricted.[28]  He cannot even sit in the one place for long, let alone work.

[28]T62

73      The plaintiff has tried everything in terms of looking for jobs.  He thought suitable work would be something that did not entail him doing heavy lifting.[29]  The plaintiff agreed he would only apply for jobs if he thought he could do them but he had not found one.  He could not do his wife’s job as a quality controller because of the amount of lifting involved.[30]  He would like to try any job; whether he would be suitable for it was another matter.

[29]T62

[30]T63

74      The plaintiff thought maybe he could do a part time driver job.  He had applied for full time work through IPAR.  They were looking for work, not him.

75      The plaintiff would like to try working as a product examiner with light products.  He would also like to try security work a building reception area.  It all depended on the situation whether he could sit or stand.[31]

[31]T64

76      The plaintiff agreed he could do a job that did not require regular lifting in excess of 4 or 5 kilograms.  He would try a static job with some walking.[32]

[32]T67

77      The plaintiff agreed that his pain was not serious enough to stop him working, but then qualified his answer stating he found it difficult to sit, stand or even lie in bed.[33]

[33]T56

78      In re-examination, the plaintiff confirmed the jobs he looked for were part time.  He would not be able to reliably turn up for work.

Activities

79      Before the incident, the plaintiff enjoyed regular fishing trips away, once or twice a week.  He still enjoyed going out fishing when he could, because it was a change of scene and he was often bored not working.  However, he found fishing harder now.  He could only fish from the bank with difficulty.  If he went fishing with his brother-in‑law, someone had to put the boat in the water, as the plaintiff could not do it himself.

80      The plaintiff could not sit for very long on the boat without discomfort.  He had to sell his boat after the incident because he could no longer use it.

81      The plaintiff agreed that he sometimes goes fishing.[34] 

[34]T66

82      Despite being part of a large extended family, since the incident, the plaintiff had gradually become more withdrawn and spent more time at home.  He had also withdrawn from a strong circle of friends.  He does not go out much with his friends for a coffee and did not know the last time he went.[35] 

[35]T67

83      It is now very hard for the plaintiff.  He stays at home and does his exercises.

84      The plaintiff goes to the pool four to five days a week, and recently tried Pilates but could not do it.  He has bought a treadmill and an exercise bike with a special back support which he has at home.  He also does exercises at home shown to him by his physiotherapist.  When he does his exercises, he usually does not feel as bad.

85      The plaintiff tries to exercise every day.  He goes to the pool three to five times a week, spending an hour to two there.  He can do ten minutes on the treadmill, building up the time, perhaps to a maximum of half an hour.  He tried Pilates but could not do it.  His level of exercise depends on how he is feeling.[36]  He tries and pushes himself for more than fifteen minutes; he can do that. 

[36]T61

86      The plaintiff agreed he is able to do most things around the house.  He does not do much shopping.  His wife does it.  He does not help her out because of problems walking.[37] 

[37]T66

87      The plaintiff had trouble getting to sleep each night, and woke during the night with anxiety about what had happened. 

88      Before the incident, the plaintiff had worked hard.  He had done a lot of the work building his own home and then maintaining it.  He also used to help friends with building and maintenance work, but now he could not manage most of his own maintenance work and other people had stopped contacting him for help.

Lay evidence 

89      The plaintiff’s fellow workmate, Peco Gusevski, swore an affidavit on 4 October 2013.

90      Mr Gusevski was employed by the defendant from August 1981 to 10 May 2010 working as a machine operator.  He worked together on the same machine as the plaintiff.

91      Mr Gusevski confirmed the plaintiff’s description of his work activities and their heavy nature.

92      The machine at which Mr Gusevski and the plaintiff worked was about 20 to 30 metres in length.  At times they worked next to each other and were able to assist each other when lifting the coils, pallets and steel, which made it easier.  The majority of the time they were apart, with one of them on either side of the machine and they had to complete heavy tasks on their own.  The job was repetitive and they were not in a position to help each other, as the machine was constantly moving.

93      Mr Gusevski could remember the plaintiff injuring his back on 3 May 2010.  There were a few coils on the floor and the plaintiff said he had hurt his back lifting, and then told him he would speak to the supervisor.  The plaintiff then did not return to work.

94      Mr Gusevski was required for cross-examination.

95      Mr Gusevski and the plaintiff sometimes spent their breaks together and the plaintiff came to Mr Gusevski’s house a couple of times.

96      Mr Gusevski last worked with the defendant in 2010 and stopped because of a shoulder injury.  He was sacked in May 2010.[38] 

[38]T74

97      Mr Gusevski then went to his general practitioner complaining about his shoulder pain and had not been able to work since.  He used his sick leave after he was sacked, and before that he was pushing himself, and he tried really hard and had no choice.

98      Mr Gusevski did not make a WorkCover claim after he was sacked at work.[39]

[39]T75

99      Mr Gusevski agreed that Mr Street spoke to him at 4.00pm one day in May 2010 about some concerns he had with the time cards.  Mr Gusevski was told by someone else that Mr Street had earlier spoken to his son.

100     Mr Gusevski agreed he became very upset when he heard what happened to his son, but he did think anything about his job at that time. 

101     Mr Gusevski remembered on that day, when they were opening the coils, the plaintiff said he injured his lower back.[40]  Mr Gusevski thought this was before he heard about his son being sacked.

[40]T78

102     Mr Gusevski then saw the plaintiff going to the office to report the injury.  Mr Gusevski did not know what time this occurred.  He found out about his son being sacked after lunch.

103     After complaining of his injury, the plaintiff said he was going to stay at work and see how he felt.  While they were still at the machine, Mr Gusevski told the plaintiff just to have a rest a little bit, and he would continue doing the job for the two of them.[41]  He asked the plaintiff to do lighter work because they worked together, just to work on the computer with the labelling and he was doing the pallets and the heavier stuff.[42]

[41]T83

[42]T83

104     Mr Gusevski walked the plaintiff out to his car in the car park.  The plaintiff then told him his pain was getting worse.

105     Mr Street asked Mr Gusevski to come to the office the following morning to discuss the cards.[43]  During this conversation, the plaintiff was changing his clothes and getting ready to go home.  The factory was quite noisy.[44]

[43]T81

[44]T89

106     Even before the said date, the plaintiff told Mr Gusevski from time to time he was in pain while they were unwrapping the coils.  When the overseas coils started to arrive they were heavier.  “We were all complaining because it was a really hard difficult job.”[45]

[45]T84

107     The last time Mr Gusevski saw the plaintiff before the hearing was when the plaintiff came to pick him up in October to take him to the solicitor’s office.  They discussed past work.  He had last seen the plaintiff two years earlier.  Mr Gusevski came back to the solicitors on a later date.  His statement was read to him by the solicitor and he then signed it.[46]

[46]T85

108     Mr Gusevski remembered on the last day when they were working together what happened.[47]  Before that time no one had asked him to think about what had happened.  He and the plaintiff were not close enough to socialise.  He could remember because that was the last day of his work when the plaintiff went to the office to report the injury.

[47]T87

The Plaintiff’s medical evidence 

109     Dr Zec, who now practises in Frankston, provided two reports and attended for cross-examination.

110     In his first report of June 2011, Dr Zec noted more than a year after injury, the plaintiff still had symptoms after even bending, moderate walk and standing.  The condition suggested a chronic problem with an unclear outcome. 

111     Dr Zec thought the plaintiff’s employment status depended on a suitable position with the defendant.  He considered the plaintiff then was suitable for alternative duties with minimal engagement of the lumbar segment of his spine.  He noted the plaintiff also had chronic ulcerosienage colitis which limited the opportunity for prescription of drugs.

112     Dr Zec last reported in November 2013.  He again diagnosed disc damage at L4‑5 and L5-S1 sustained during work after lifting a heavy object.

113     Dr Zec noted, since the injury, the plaintiff had been treated with painkillers.  He was doing physiotherapy and now attended the swimming pool two to three times a week.

114     Dr Zec did not think the plaintiff had the capacity for pre-injury employment.  He thought that he would be able to perform tasks that did not require long walking, standing or sitting. 

115     Dr Zec considered the plaintiff’s prognosis after several years of permanent symptoms was not optimistic and that he had permanent damage of lower back fragment and had a permanent disability.

116     Dr Zec concluded, with the plaintiff’s longstanding problem, he had been showing mental instability with depression symptoms and for the last six months he had been prescribed the anti-depressant, Sertraline, 50 milligrams.  Dr Zec thought the plaintiff’s mental problem was clearly related to his longstanding lower back injury.  He noted the plaintiff had not been seen by any specialists due to his injury being permanent.

117     Dr Zec, was required for cross-examination.

118     Dr Zec certified the plaintiff unfit for all duties from 20 March 2012 to 30 November 2013.

119     Dr Zec confirmed he first saw the plaintiff in July 2006 and saw him regularly until he left the clinic in August 2011 at Greenvale.  He then saw the plaintiff at Frankston.

120     Dr Zec agreed his note of May 2007 of a worsening chronic problem probably suggested there had been a problem for some time.[48]  The plaintiff did not tell him what was the cause of his pain.

[48]T93

121     Dr Zec also noted an injury at work in September 2007 with lifting and a chronic problem with the plaintiff’s his back.  Dr Zec agreed that back pain had been there for some years.[49]  He used the word “chronic” in terms of the back pain’s longevity.[50]

[49]T95

[50]T96

122     There was also the note of lifting a table on 4 January 2010 and low back problems in the past.  Dr Zec agreed it was his understanding the plaintiff had had back pain for a number of years, “something that came and went”.

123     Dr Zec did not perform any imaging in those early days.[51]

[51]T97

124     A note of 4 May 2010 set out “back pain worsening, chronic problem”.  The certificate of that date set out that the plaintiff had hurt his back lifting steel that day – “back pain after lifting some steel”.

125     Dr Zec confirmed on 16 May 2010, the plaintiff told him his back was better but the pain was still there.

126     Dr Zec confirmed the prescription of various medications.[52]

[52]T103

127     Dr Zec confirmed he had completed a document for IPAR on 15 December 2010 as to the plaintiff’s capacity for employment.  He agreed he then thought the plaintiff had a lifting capacity of 4 to 6 kilograms, and sitting for two to three hours.  He thought the plaintiff had a capacity for six to eight hours to do four of the jobs suggested by IPAR. 

128     Dr Zec agreed that the plaintiff had remained fit to do those jobs[53] but he went on to say that the plaintiff is not able to do them now.[54]  He then explained that was because there was confirmation on CT scan of the plaintiff’s condition.

[53]T104

[54]T105

129     Dr Zec did not know the plaintiff had applied for many jobs.  He had had discussions with the plaintiff over the last couple of years and the plaintiff told him he felt he could not work.[55]  Every time Dr Zec asked him things like “how long can you sit or walk?,” the plaintiff told him he had problems and pain. 

[55]T106

130     Dr Zec thought the plaintiff’s ability to work depended on what kind of work he was offered, noting that he was not an occupational specialist.

131     Dr Zec thought, probably, the plaintiff still had the capacity he described in November 2010.[56]  The plaintiff would have to try jobs not requiring a prolonged posture or heavy lifting.  His ability to do that work was just speculation.  Dr Zec agreed it was certainly something he felt from knowing the plaintiff that he had this capacity. 

[56]T106

132     Dr Zec did not know how frequently the plaintiff exercised but knew it was frequently.  Knowing the plaintiff, he thought, basically, he “used everything to try to turn his back to working force”.[57]  He knew the plaintiff was able to do things around the house but thought he could probably go fishing.

[57]T107

133     The plaintiff did not have regular medication because he had several health issues.  There were always limitations on medication because of other conditions.

134     Dr Zec agreed that for the first year he saw the plaintiff at Frankston he only prescribed Panadeine Forte once.  Tramadol was prescribed for an unrelated condition.  He thought he had prescribed Panadeine Forte three times in the last twelve months.[58]

[58]T109

135     Dr Zec thought a Norspan patch was prescribed once; he was not quite sure.  He had not considered using a Norspan patch.  He then said probably the plaintiff tried and they knew the Norspan had some very bad side effects.[59]

[59]T111

136     Dr Zec ultimately agreed he was just guessing as to why Norspan had not been prescribed.  He then conceded the plaintiff had not reached the level that he needed Norspan,[60] because it was a very addictive drug.

[60]T112

137     Dr Zec agreed he had not seen the need to refer the plaintiff to an orthopaedic surgeon other than Mr Barrett.  He ultimately conceded that with the plaintiff’s level of activity at home and his level of Panadeine Forte, he was certainly someone who would be able to do light work.[61]

[61]T113

138     In re-examination, when asked about the total incapacity certificates, until the end of 2013, Dr Zec explained the plaintiff could do some work but the question was for how long he could do it if he tried.  In these circumstances, he would probably suggest the plaintiff follow the instructions of the rehabilitation company.  When someone comes back after long term problems, their return to work is always part time to see how they will cope.[62]

[62]T114

139     Dr Zec confirmed it was quite clear there were two options with further treatment; conservative or surgery.  Definitely the plaintiff was not willing to have an operation and no one could guarantee its success.  It was pretty much a “flat line” in regards to the problem and he did not think an orthopaedic surgeon had anything to offer over and above what had already been offered.

140     When Dr Zec had given a prescription of Panadeine Forte it was for three repeats of twenty tablets and there had been three in the last twelve months.[63]  It seemed the last prescription was 1 July 2013, although the last attendance was November of that year.

[63]T117

141     Dr Zec referred the plaintiff to Mr Brian Barrett, orthopaedic surgeon, in June 2010. 

142     Mr Barrett then noted the plaintiff gave a previous history of some mild low backache for about two or three years while lifting at work, being off work for one or two weeks at a time.  His general health had otherwise been good.  He also told Mr Barrett of the incident.

143     On examination, the plaintiff moved rather slowly and stiffly and lumbar movements were significantly limited, all producing sudden stabs of low back pain.  Some moderate lower lumbar tenderness was noted.  There was limited straight leg raising.  All lower limb reflexes were present and equal although not brisk.

144     Mr Barrett noted the CT scan of the lumbar spine showed normal upper lumbar discs and the bone structure appeared normal.  However, the L3 to S1 discs had mild posterior disc bulges, particularly a L4-5, consistent with the plaintiff’s symptoms. 

145     Mr Barrett then sent the plaintiff off for a lumbar spinal MRI scan, which was carried out on 29 June 2010.

146     Mr Barrett noted that the T12 to L3 discs appeared to be quite normal but the T11-12 was somewhat desiccated and with an anterior disc bulge.  The lower three lumbar discs were all desiccated; L3-4 had a mild posterior disc bulge pushing into the right intervertebral foramen and close to the emerging right L3 nerve root.

147     The L4-5 disc had a larger posterior disc bulge and a split in the annulus as being close to the left L5 nerve root and also pushing into both intervertebral foramina below the emerging L4 nerve root.

148     Finally, the L5-S1 disc had a mild posterior tear in its annulus and a mild posterior disc bulge, this being close to the right S1 nerve root.  There was a moderate degree of osteoarthritis involving the posterior facet joints at the lower two disc levels.

149     Mr Barwood re-examined the plaintiff in July 2010 to explain the MRI scan results, using the films to show him the three low lumbar discs were disrupted and quite seriously damaged.

150     Mr Barrett told the plaintiff how a ruptured disc of that type had no significant capacity to heal or repair and he would not be able to go back to heavy physical work without increasing problems.  The conservative treatment was therefore appropriate and the plaintiff understood a return to heavy work would make his symptoms and disability even more severe.

151     Mr Barrett reported to the plaintiff’s solicitors in June 2012.

152     Mr Barrett confirmed the plaintiff had sustained injuries to his T11-12 and the lower lumbar three intervertebral discs following work activities and dramatically increasing as a result of the incident and continuing to remain symptomatic to the present day.

153     Mr Barrett considered the disc ruptures followed the repetitive bending and heavy lifting required at work.  As of July 2010, he thought progress was moderate and the plaintiff remained unfit to seriously consider a return to work in light and part time work.

154     Mr Barrett noted it may occur over the next few months that some modest improvement could take place, at which time the plaintiff may consider a return to initially part time and light work.  However, if his symptoms improved to a moderate degree, the plaintiff may seriously consider a return to light and initially part time work in the future, but that is currently not possible.

155     Mr Barrett concluded the prognosis for significant improvement was poor; lumbar disc ruptures of this severity have no significant capacity to heal or repair and it may be that the plaintiff will not improve to the stage where he could even seriously consider a return to light and part time work in the foreseeable future and his disability remained fairly profound.

156     On the last examination in July 2011, the plaintiff reported still quite severe low back pain radiating into the lower left limb as far as the sole.  He told Mr Barrett he had applied for a number of light jobs but no work was available for him as he could not stand or sit for long, bend or lift and had made application for a pension.

157     Following examination, Mr Barrett thought it was clear the plaintiff was not improving and equally clear he was not fit to return to even light and limited work and his disability was permanent, not with any capacity to heal or repair. 

158     Mr Barrett noted operative treatment was not likely to be helpful and in fact ran the risk of increasing the plaintiff’s problems.  Conservative treatment was appropriate but medication to suit his symptoms also ran the risk of indigestion.  He was afraid, from an orthopaedic view, there was little that could be offered to this “unfortunate fellow”.

Investigations

159     Dr Zec organised a CT scan of the plaintiff lumbar spine on 24 May 2010.

160     It was reported there was mild degenerative change seen through the lumbar spine.

161     Mr Barrett organised the MRI scan of June 2010.  It was reported the major focal abnormality was at L4-5, where a small moderate sized left posterolateral disc protrusion caused some compression of the proximal portion of the left L5 nerve root.  No high grade central compromise was seen.  It was noted at most, there was a minor central canal compromise at L4-5.  There was no substantial foraminal compromise.

Medico-legal evidence

162     Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on 1 August 2012.

163     The plaintiff told him of a history of heavy lifting at work and then the incident.  He told Mr Brearley he had looked for lighter work and had applied for over a hundred jobs without success and was granted a Disability Support Pension in July 2012.

164     The plaintiff told Mr Brearley he had had occasional episodes of back pain during the course of his employment but had no significant time off work and he was able to continue with his normal heavy duties.

165     The plaintiff also told Mr Brearley of a left inguinal hernia as a result of work in April 2010.  However, he had no discomfort in the groin and he had never been aware of a lump or swelling.

166     On examination, the plaintiff gave no indication of any exaggeration.  There was slight tenderness over the lumbar spine and moderate restriction of movement.  There was slight limitation of right straight leg raising to 70 degrees and 80 degrees to the left.  All deep reflexes were weak and difficult to illicit but appeared equal.  Sensation was normal.

167     Mr Brearley viewed the x‑ray of May 2010, the 2010 CT scan and the 2010 MRI scan of the lumbar spine. 

168     Mr Brearley diagnosed mechanical lumbar back pain due to intradisc injury to the L4-5 intervertebral disc.  He noted protrusion of the disc was causing some pressure on the left fifth lumbar nerve root and in addition to back pain, the plaintiff had some right-sided leg pain and occasional left pain.  He thought the condition was consistent with the stated cause and the plaintiff needed continuing conservative treatment.

169     Mr Brearley considered the prognosis was not good and there was no likelihood the plaintiff would return to his original state and his present symptoms would continue for the foreseeable future.  He did not think it was likely there would be any serious deterioration. 

170     Mr Brearley noted difficulties the plaintiff experienced with social and domestic activities. 

171     Mr Brearley thought there was no possibility the plaintiff would be able to return to heavy work he was doing before and he required retraining.  He considered the plaintiff would need to work with restriction; namely, avoidance of all heavy and repeated lifting and much bending and stooping and long standing.  The plaintiff would have to be able to sit and stand as he wished during his work time.

172     Mr Brearley noted there was no clinical evidence of a left or right inguinal hernia.

173     Mr Brearley provided a supplementary report in November 2013, having been provided with the IPAR report of 5 October 2010 and Mr Myers’ report of 5 August 2013.

174     Mr Brearley confirmed he felt the plaintiff was fit for carefully selected suitable light work, part time, with the restrictions he earlier suggested.  He thought the plaintiff should do no more than three hours a day, four days a week.  However, he noted there was no realistic possibility the plaintiff would ever be able to obtain such work as had been evidenced by to the response to his many work applications.

175     If per chance the plaintiff was able to obtain such suitable light part time work, Mr Brearley thought he would be quite unreliable because of exacerbations of back pain and because of his requirement for Panadeine Forte which interfered with his concentration and his cognitive functioning which would make him inefficient and unreliable and subject to injury.  Further, the plaintiff would need rest breaks of ten minutes every hour or two.

176     Taking into account these factors and the history of injury, Mr Brearley thought it was very evident that the plaintiff would not be able to work in the foreseeable future and probably also in the long term. 

177     Mr Brearley thought forklift operator work would be difficult because of the vibration involved when driving the machine, which would cause an increase in back pain.  Also, the plaintiff would not be able to do any manual lifting or stacking, nor could he service the forklift, as he could not bend and stoop. 

178     Work as a process worker would be difficult because of the twisting and turning and the plaintiff is not able to stand for long.  Similarly, he would not be suitable for a work as a packer, for he is unable to sit for long periods or stand for long.  He would be unable to do any of the lifting required to stack the boxes and pallets.

179     Mr Brearley thought the plaintiff could possibly do some work as a product assembler but he would need to work with the restrictions and there was no likelihood any employer would offer him paid employment when the above factors were taken into account.

180     Mr Myers examined the plaintiff in August 2013.

181     The plaintiff told him that for a couple of years prior to the worsening of his condition in 2010, he had been responsible for packaging heavy coils from overseas and lifting from the floor into bins, the coils weighing some 20 to 30 kilograms.  As a result, he had a gradual onset of pain in the low back building up over the next two years. 

182     The plaintiff finally reported the problem on the said date when his back gave way.

183     On examination, Mr Myers noted the plaintiff made no attempt to exaggerate his disability.  The plaintiff had more than 50 per cent of the expected range of movement of the low back but there was pain from the flexed position.  There was unrestricted but painful straight leg raising.  Mr Myers was not able to elicit any reflexes in the lower extremities and calf circumference was equal.

184     Mr Myers had available all the 2010 investigations and Mr Barrett’s reports of 2010 and 2011.

185     Mr Myers thought the plaintiff suffered aggravation of previously asymptomatic degenerative intervertebral disc disease in the lumbar spine resulting from repetitive strains placed on his back at work.

186     Mr Myers considered conservative treatment was appropriate, although failure to respond would lead to the need for review as to the possibility of surgery.  He thought there was no reason to anticipate any future improvement, with the probability of long term worsening.

187     Mr Myers thought the plaintiff would never get back to pre-injury work and his education and vocational background was such that he would have difficulty in obtaining any form of employment due to physical impairment quite independent of any psychological component.

188     Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 3 October 2013.

189     The plaintiff told her he had suffered an injury to his low back in September 2007 when he was performing heavy lifting and he was off work for two to three days, then normal duties.  There was a hernia in April 2010.  The plaintiff told Dr Sutcliffe that on the said date, he sustained onset of back pain in the incident.

190     The plaintiff told her of a walking limitation of ten to fifteen minutes and sitting for an hour but it was uncomfortable during that time and standing was limited to five minutes only and driving to thirty minutes.

191     Dr Sutcliffe had available the 2010 investigations, Mr Barrett’s report of 2011, Mr Brearley’s and Professor Myers’ reports of 2013 and Dr Nathar’s report of 2011. 

192     Dr Sutcliffe thought the plaintiff sustained onset of disc degeneration at several levels in the lumbosacral spine related to heavy lifting at work and also a specific incident.  She noted on examination, restricted range of movement, some back spasm, decreased circumference of the right thigh, some weakness in the right leg and some sensory change.  She noted investigations indicated pressure on the left rather than the right L5 nerve root.

193     Dr Sutcliffe believed the plaintiff had persisting severe pain as a result of the work related aggravation of degenerative disc disease and that that would continue into the foreseeable future.  She thought he had no capacity for employment, taking into account his age, education, training, past work experience and the nature of injury.

194     Dr Sutcliffe thought conservative treatment was appropriate and that the prognosis was poor and there would be continuing pain in the foreseeable future.  She noted there is a history now of right leg pain posteriorly but previously history of bilateral leg pain posteriorly consistent with the findings on investigation. 

195     Dr Sutcliffe thought the plaintiff had no present capacity for pre-injury work or other employment or in the foreseeable future.  His incapacity was physically based and permanent.  She also thought, as a result of his injuries, the plaintiff had sustained very substantial adverse impact on his capacity for activities of daily living and enjoyment of life.

196     Dr Nathar, psychiatrist, examined the plaintiff on 12 September 2013. 

197     The plaintiff told him, in terms of past history, there had been a number of past minor problems, for example in 1998, a finger injury, and 1997, two or three days off due to a low back pain with full recovery and then the hernia in 2010, followed by a significant lifting injury on 3 May 2010.

198     The plaintiff told Dr Nathar he had become very stressed and his stress was very bad.  He had withdrawn socially and his friends had dropped him.  He worried a lot about what had happened and he even had fleeting suicidal thoughts.  He had no interest in sex.

199     Dr Nathar noted that in the last few weeks, the plaintiff’s general practitioner had started him on Zoloft and the plaintiff was thinking whether he should agree with his general practitioner and start having some counselling.

200     The plaintiff told Dr Nathar that he must have made 150 job applications, noting he was retrained and he was sent to English classes in the first six months after ceasing work.  Dr Nathar noted the plaintiff said, though he spoke quite reasonable English, he was not good with spelling or writing.

201     On mental status examination, the plaintiff looked and sounded miserable and depressed and seemed to be in physical discomfort.  He was moderately depressed and anxious.  He was preoccupied with his pain and physical problems and very negative and pessimistic in his thinking.  He had fleeting controlled suicidal thoughts and was not delusional.  There were no perceptual disorders and he was correctly orientated and concentrated well but did refer to notes on his iPhone to aid his memory.  His intelligence was within normal limits, insight was present and his judgment generally intact.

202     Dr Nathar thought the plaintiff was suffering from a moderate degree of Chronic Adjustment Disorder with Anxious and Depressed Mood, which Dr Nathar believed had been the result of his employment.  But for the physical injury, he considered the plaintiff would not have developed his secondary psychiatric reaction, therefore, work remained a significant contributing factor.

203     Dr Nathar thought the plaintiff would probably benefit from a few sessions of supportive psychotherapy with a psychologist and he would need Zoloft for life, and that might assist with sleep.  He doubted whether that would cause a significant reduction in the level of severity of the plaintiff’s psychiatric symptoms.

204     Dr Nathar thought the overall psychiatric prognosis was poor.  He noted the significant physical injuries in the lower back were acting as chronic stressors on the plaintiff’s mental state and he had not been able to cope with his plight, so far in not being able to work and not being able to retrain to light duties and he had become totally demoralised and would have ongoing psychiatric problems at the current level.

205     Dr Nathar concluded the long term effects of the plaintiff’s psychiatric injury would be that on its own, it would cause him to be totally and permanently incapacitated for his pre-injury and alternative duties, full and part time.  He considered the plaintiff is demoralised, depressed and anxious and seemed to have lost all hope not being able to deal with the chronic physical problems.  He was very much preoccupied with negative thinking and his pain and physical limitation.

206     Dr Nathar noted the plaintiff is not a good retraining candidate, given his limited command of useful English language.  He had failed in many attempts to find suitable work, therefore, he was totally incapacitated for all work taking into account his psychiatric injury alone.

207     Dr Nathar concluded, in addition, the plaintiff’s psychiatric injury would cause significant and permanent reduction in more than a significant way in his ability to attend to all social and recreational activities and activities of daily living.

Vocational evidence

208     Annette Webster from Flexi Personnel carried out an employment assessment of September 2013, having interviewed the plaintiff.  She was provided with the reports of Mr Myers and Mr Brearley and the medical certificate of Dr Zec, who diagnosed the plaintiff, on the basis of disc damage, unfit for any work from 27 August 2013 to 23 September 2013.

209     Ms Webster thought, as a recruiter, the plaintiff would find it extremely difficult to realistically fulfil the requirements of any job in a full time or even part time position without consideration being given to his work restrictions; namely, his need to avoid all heavy and repetitive lifting, bending, stooping and standing with the flexibility to sit and stand as required.  Therefore, she would not consider him for any vacancy without a medical clearance from his doctor. 

210     As a result of his workplace injury and consequential ongoing symptoms, Ms Webster thought the plaintiff is no longer able to perform his pre-injury role and, from a recruitment perspective, this would also extend to work of a parallel physical demand and she would not refer him for any vacancies regardless of the duties or hours, as she would be concerned he could injure himself further, which may also lead to absenteeism and loss of production.

211     Ms Webster noted difficulties the plaintiff had with reading and writing skills, completing the standard job application form.  He scored only 50 per cent on a spelling test and did not attempt the writing section.

212     Ms Webster thought, as a recruiter, the plaintiff’s basic functional barriers to employment would also present as a major negative influence if attempting any retraining or study program and would be further hindered by his poor English literacy skills, reduced memory and concentration levels, pain symptoms and fatigue.  From a recruitment perspective, she believed it would be naïve to envisage the plaintiff could retrain into successfully performing administrative computer work, when considering his physical limitations and his lack of computer and administrative skills and experience.

0

The Defendant’s Evidence

Lay evidence

213     Robin Street, operations manager, employed by the defendant since 2001, swore an affidavit on 25 November 2013, exhibiting a statement made by him on 25 September 2012.

214     Mr Street started the defendant’s investigation into alleged fraudulent use of clock cards on 3 May 2010, meeting and discussing the issue with a number of employees.  At about 1.00pm that day, he spoke with Nick Gusevski, son of Peter, and at 3.30pm spoke to Peter, who normally worked with the plaintiff. 

215     Mr Street did not mention to Peter that he had some concerns about the plaintiff’s clock information.  He arranged to meet Peter the following day to discuss the issue further and fully intended to meet and discuss the matter with the plaintiff.

216     Mr Street had no specific recollection of the plaintiff being at work on the said date, but he did attend work at 7.33am and left at 3.40pm.

217     Mr Street had noted on 4 May 2010, the plaintiff rang in sick, saying he had a sore back.  Mr Street strongly suspected that, after he had spoken with Mr Gusevski, he was informed by him that the investigation into fraudulent use of time cards was underway.

218     The following day, Mr Street tried to contact the plaintiff by telephone, but was unsuccessful.  Between 10.00 and 11.00am, the plaintiff attended the workplace and dropped off a medical certificate.  Mr Street informed him he needed to speak to him about irregularities with clock cards.  However, the plaintiff advised him he had a doctor’s appointment and would return at 1.00pm to meet.  However, he never returned.

219     As far as Mr Street was aware, the plaintiff had taken sick leave which, at the time, Mr Street felt he had taken in order to avoid discussing the issues with his clock cards.  He wrote to the plaintiff on 19 May 2010 requesting an opportunity to meet with him.

220     Mr Street had been informed that the plaintiff lodged his WorkCover claim on 17 May 2010.

221     Mr Street subsequently met the plaintiff on 24 and 26 May 2010 and 2 June 2010 when the allegations of fraudulent use of time cards was put to him.  The plaintiff did not provide any adequate explanation of the discrepancies between his time cards, other workers’ time cards and gate passes and, as such, his employment was terminated on 2 June 2010. 

222     The plaintiff subsequently lodged an unfair dismissal claim and was represented by the union.  In resolution, various amounts were paid on a confidential, non-admission basis.

223     Some time after the plaintiff’s employment was terminated, Mr Street was informed of the plaintiff’s WorkCover claim.  He told the team they should have challenged the claim because, in his opinion, the claim was not valid.  However, their opinion was these types of claims in the workplace will always be accepted.  As far as he was aware, the defendant did not lodge any objection to the claim.

224     The plaintiff never spoke to any of the men who worked in the Littell department or Admir Smajic about the circumstances of the alleged injury.  He was certain, if the plaintiff verbally reported the injury to Admir, that Admir would have informed him about it, whether or not a formal injury report was completed.  He did not believe on that day Admir would have been aware of his investigation, but Mr Street was in the Littell department that day, and the materials preparation department, and either Admir or the plaintiff could have reported the alleged injury to him.

225     Exhibited to that affidavit were some time cards.

226     By letter dated 24 May 2010, the defendant advised the plaintiff he had been directed to attend a meeting on 24 May 2010 to discuss allegations of falsifying time and wages records.

227     By letter dated 2 June 2010, the plaintiff’s employment was terminated on the basis of misconduct.

228     On 21 July 2010, the plaintiff signed a note from Southcorp Packaging to verify that the back injury reported on 20 July 2010 was not sustained as a result of the work-related injury.

Compensation documents

229     There was a Claim Form lodged by the plaintiff on 24 September 2007 claiming back pain after heavy lifting.  He injured his back from levering corner blocks of imported wooden pallets.  The incident was reported to Wayne Tanner and witnessed by Peter Gusevski.

230     The plaintiff signed an Injury Claim Form on 17 May 2010, setting out back pain after heavy lifting when opening imported coils from Japan and lifting steel.  The incident on 3 May 2010 at 2.00pm was reported to Admir Smajic, team leader.  Peter Gusevski was noted as a witness.  It was noted the plaintiff had previously had another injury on 18 September 2007.

231     In the Employer Claim Form signed on 20 May 2010, the employer accepted that the plaintiff had an injury condition that was work related and agreed with sections 2 and 4 of the plaintiff’s Claim Form.

232     The plaintiff lodged another claim on 24 May 2010 for a small indirect inguinal hernia suffered while lifting at work.  He reported it to Wayne Tanner, the team leader.  On the employer’s injury claim report of 2 June 2010, it was accepted the injury was work related. 

Investigations

233     There was an ultrasound of the left inguinal region organised by Dr Sood on 22 April 2010 which showed evidence of a small indirect inguinal hernia contacting omental fat moving normally.  No femoral hernia was noted.

Medical evidence

234     Greenvale Medical Centre clinical notes set out the following attendances on Dr Zec:

·“9 May 2007, back pain worsening, chronic problem. 

·18 September 2007, back pain after heavy lifting at his work, has had a chronic problem with his back.

·4 January 2010, back pain after lifting a table at home, problem with lower back pain in the past, left paravertebral tenderness on examination

·4 May 2010, back pain worsening, chronic problem.  Brufen was prescribed.

·16 May 2010, back better, but still pain present.”

Medico-legal evidence

235     Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in August 2010.  The plaintiff told Mr Kudelka he was well until the incident when he strained his back lifting.

236     On examination, there was significant reduction of lower lumbar movement.  Straight leg raising was 20 degrees on the left and 60 on the right.  Reflexes were present, but the plaintiff had sensory loss consistent with left-sided L5 neuritis.

237     Mr Kudelka thought the plaintiff had work aggravated degenerative changes in the lower lumbar disc, particularly at L4-5.  He thought it was age related, but significantly aggravated by mechanical strains at work.

238     Mr Kudelka considered it unlikely in the foreseeable future the plaintiff would be able to return to repetitive manual factory work involving bending and lifting, and doubted he would be able to return to pre-injury duties and thought, in the future, retraining was probably appropriate.  He thought that alternative duties not involving mechanical strains on his back could be considered.  He thought the plaintiff then had no work capacity.  He noted the medication taken by the plaintiff because of his colitis. 

239     Mr Kudelka thought the plaintiff may have a capacity for suitable employment, but there would be significant restrictions on prolonged sitting, bending, standing, stooping and lifting.

240     Mr McInnes, general surgeon, first examined the plaintiff in January 2011.  The plaintiff told him he had been previously fit and well before the incident when he had a sudden pain in his back, which he described as being severe and prevented him from doing any work.

241     On examination of the thoracolumbar spine, there was no visual abnormality but there was some tenderness over the whole of the lumbar region.  There was some restriction of movement and straight leg raising.  All reflexes in the lower lumbar limbs were diminished.  There was some paraesthesia on the lateral surface of the left calf, which Mr McInnes thought would possibly indicate L5 neuropathy.  Mr McInnes noted the MRI scan and CT scan of 2010.

242     Mr McInnes thought the plaintiff was suffering from L4-5 intervertebral disc degeneration and protrusion on the background of degenerative disease of the lumbar spine.  He thought the L4-5 lesion was work related and the injury was compensable. 

243     Mr McInnes believed the plaintiff could return to modified duties, but not to his pre-injury duties.  He thought the plaintiff had a capacity to do work on alternative duties and/or hours which would involve no heavy lifting, no twisting and turning and no periods of long sitting.  That return to work should be guided by medical advisers, but Mr Innes suggested that the plaintiff should be able to return to work in the next six weeks.  He noted that chronic ulcerative colitis was affecting the plaintiff’s return to work program.

244     There was a re-examination in May 2011, at which time the plaintiff advised his back had deteriorated slightly and he was getting pain on the outer side of his left leg to his foot.

245     On examination, the findings were much the same as previously.

246     Mr McInnes noted the plaintiff was much the same as previously, although his range of movement was slightly improved.  He noted his view expressed earlier that the plaintiff could return to modified duties, and further noted that it is now a year since his injury and he believed the injury related component had finalised.  He then concluded, however, his opinion had not changed, except the plaintiff should be able to return to some full-time work immediately, but he did not presently have the capacity for full-time hours or pre-injury duties.  He considered the plaintiff may achieve that over a period of six months but should be guided by his medical advisers.

247     Mr McInnes provided a supplementary report in July 2011, apologising for the apparent misunderstanding.  He noted the plaintiff still has problems with the L4-5 intervertebral disc and there is protrusion of the disc.  However, his clinical condition has slightly improved.  His range of movement is slightly improved and the paresthesia in his left leg has disappeared.

248     Under those circumstances, Mr Innes believed that the condition of pain radiating down the plaintiff’s left leg had diminished, the influence of the disc protrusion had diminished and was no longer contributing to the plaintiff’s condition, but his prime condition of degenerative disc disease was still related to his original incident.

249     Mr Ian Jones, orthopaedic surgeon, examined the plaintiff in October 2013.  The plaintiff told him of an initial injury to his back in 1997 from which he fully recovered and then the incident injury.

250     In terms of current complaints, Mr Jones noted that the specific questioning confirmed the plaintiff was able to sit without restriction and he was able to use a computer.  His pain was exacerbated after more than fifteen minutes continuous standing and walking for greater than ten minutes on the treadmill.

251     On examination, the range of lumbosacral flexion was half of normal.  Bilateral leg raising was normal and neither knee or ankle jerk reflex could be established on either left or right side.  The power and sensation of both limbs was normal. 

252     Mr Jones noted the plaintiff appeared to experience some difficulty when getting up from the supine position on the couch.

253     Mr Jones had available the 2010 investigations.

254     Mr Jones concluded the plaintiff suffered from some lumbar back pain and restriction of spinal movement with x-rays showing evidence of degenerative disc disease involving the lower three levels of the lumbar spine, particularly evident at the L4-5 disc level and associated with a small disc protrusion.  Mr Jones thought that was consistent with the injury at work.

255     Mr Jones considered that the plaintiff was not fit for his pre-injury work as a machine operator.  He thought he would be capable of light physical work not requiring repeated bending or heavy lifting.  He believed the plaintiff could perform the work of a stand-up forklift operator, process worker, packer and product assembler provided restrictions in terms of repeated bending and lifting of over 5 kilograms were adopted.

256     Mr Jones could find no evidence of any non-organic symptoms or signs in the plaintiff’s presentation.  He thought the plaintiff’s outlook was one of varying degrees of lumbar back pain and stiffness, depending on the demands he made on his lumbar spine.  He thought it likely, in the long term, the plaintiff’s back condition would gradually deteriorate with increasing stiffness and pain.  Mr Jones thought conservative treatment was appropriate.

Vocational evidence

257     IPAR carried out in an NES vocational assessment report in September 2010, identifying suitable employment options as a stand-up forklift operator, process worker, packer and product assembler. 

258     Ayres Management Services provided a vocational assessment report in August 2013.  The following jobs were seen as suitable – light process worker ($561 a week), hand packer ($749 a week), product assembler with lighter products ($883 a week), electrical and electronic assembler ($883 a week), product examiner ($1,017 a week), container filler ($892 a week), machine operator – for example, general plastic production machine operator ($1,057 a week) – retail sales assistant ($733 a week), ticket seller ($990 a week), and information clerk ($940 a week).

259     By letter dated 31 May 2011, QBE advised the plaintiff that, following a review by Mr McInnes, he was no longer entitled to weekly payments, as his incapacity for work was not materially contributed to by an injury arising out of or in the course of his employment, his incapacity for work was not materially contributed to by an injury which entitled him to compensation, and medical and like expenses he was claiming were no longer reasonable or necessary.

Overview

260     There initially appeared to be some issue as to whether there was a compensable injury on the said date.  Ultimately however, this was accepted, and counsel for the defendant conceded an incident may have occurred and fraud was not suggested.[64] 

[64]T120

261     It was never put to the plaintiff in cross-examination that he had deliberately falsified his claim because he knew his employment was at risk due to the time cards issue or for any other reason.  In any event, there was no evidence the plaintiff had any knowledge of a personal involvement in the time cards issue as at the said date.

262     Mr Street’s view was based on suspicion, as he deposed. Implicit in his statement was that he did not directly communicate with the plaintiff about falsifying time cards before he went off work. 

263     Further, it was not suggested to Mr Gusevski that he advised the plaintiff that he was at risk of investigation in relation to any time card prosecution.  [65]

[65]T151

264     The time cards were coincidental as far as the plaintiff was concerned.[66]

[66]T149

265     I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[67] such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

[67][2006] VSCA 171

266     Counsel for the plaintiff submitted reliance on this authority had more force in this case, as Mr Street had effectively warned he did not accept or believe the claim, yet it was accepted by the insurer.[68]

[68]T154

267     I accept there was a compensable injury to the plaintiff’s lower back on the said date, corroborated by Mr Gusevski.  There was also a contemporaneous report by the plaintiff to his general practitioner, Dr Zec, the following day of an injury to his back whilst lifting steel.

268     In terms of any Petkovski v Galletti[69] issue, whilst there might have been differing versions in terms of the words used by the plaintiff as to any pre-existing back problem, there was no suggestion of any back pain prior to the period of employment with the defendant and, in any event, the plaintiff’s claim was based not only on the incident but the course of his employment.

[69][1994] 1 VR 436

269     There were minor inaccuracies in the plaintiff’s first affidavit in terms of the date of the previous injury being 2009 not 2007 as it should have been; the incident with the rubbish bag being 2010 rather than 2000; the mention of previous claims whereas there had in fact been only the one claim and the level of contact and nature of treatment, if any, with Dr Chan ten years earlier.

270     Whilst there might be some differences in his description of his pre incident condition, I accept that the plaintiff had, at times, niggling back pain which he reported to Mr Gusevski and mentioned at times to his general practitioner, Dr Zec. This back pain was not of the nature that it affected the plaintiff’s capacity to engage in full time unrestricted manual employment prior to the said date, nor did it impact on his ability to engage in daily activities.  There were incidents of back pain.  The plaintiff had a small problem but it was nothing serious.[70]

[70]T148

271     I accept the plaintiff’s situation changed significantly after the incident.

272     The consensus of medical opinion is that the plaintiff has suffered an aggravation of pre existing degenerative disease at L4-5.

273     I am satisfied that the plaintiff’s injury to the L4-5 level has a significant organic basis.  There is no suggestion of any functional component.[71]

[71]T133

274     Counsel for the defendant conceded Mr McInnes’ opinion that there was no longer a work contribution to the plaintiff’s back condition was against the weight of the evidence and that opinion was not being put on the defendant’s behalf.[72]

[72]T146

275     The point the defendant made was even if there are ongoing consequences, given all the surrounding circumstances and the plaintiff’s own evidence, they were not “very considerable”.

Credit

276     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[73]

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

[73](supra) at paragraph [12]

277     Counsel for the defendant attacked the plaintiff’s credit on a number of grounds.  It was submitted that the plaintiff tailored his evidence to suit his case,[74] his memory was selective and he exaggerated his work related symptoms,

[74]T126

278     Reliance was placed on the decision of the Court of Appeal in Transport Accident Commission v Zepic,[75] where the Court held that a finding that a person’s viva voce evidence was not credible, extended to their affidavit material, and other aspects of their evidence such as histories to doctors could not be “hived off” as being acceptable.

[75][2013] VSCA 232

279     As his counsel conceded, whilst it might be that the plaintiff’s credit was dented at various stages, and he was not pristine on all issues, overall, his evidence was consistent with corroborative evidence.  In my view, the plaintiff’s evidence was generally truthful and credible.

280     Further, there was no surveillance film of any activities on the plaintiff’s behalf that was inconsistent with his viva voce or affidavit evidence, nor was there any mention by any medical practitioner of any inconsistencies or exaggeration on examination.[76]   

[76]T129

281     The evidentiary basis of the plaintiff’s pain experience will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.[77]

[77]Per Maxwell P in Haden Engineering v McKinnon (supra) at paragraph [11]

282     In terms of consequences, the plaintiff’s complaints of constant pain were essentially unchallenged.

283     The plaintiff continues to suffer with low back pain, pain going down to his buttocks, mainly down to the right leg into the foot, and also pain in his left foot.  His right low back pain varies between aching and cramping, and at times feels as if ants are crawling on his leg.

284     The plaintiff’s treatment has been of a conservative nature.  He was initially referred to Mr Barrett in 2010.  The circumstances of a further referral to Mr Richardson in 2011 are unclear with the plaintiff giving different answers as to his reason for non attendance.  In any event, Dr Zec confirmed he did not consider specialist referral was necessary given the permanency of the plaintiff’s condition.

285     The plaintiff initially required a lot of Panadeine Forte after the incident.  In more recent times, he takes three to four Panadeine Forte a week, limited to some extent by his gastric problems.  That medication continues to be prescribed by Dr Zec.

286     I accept that the plaintiff’s level of pain has not been to such a degree that Dr Zec thought the prescription of Norspan patches was appropriate, although that course was tried at some stage after Dr Zec left the Greenvale practice.

287     I accept the plaintiff is permanently restricted in terms of bending, lifting and maintaining sustained postures as a result of his back condition.

288     The plaintiff is no longer able to enjoy activities such as building and home maintenance and he is significantly restricted ability to go fishing which was his main hobby before the incident.

289     The most significant consequence of the plaintiff’s lumbosacral injury is its interference with his ability to do manual work.

290     The plaintiff’s work history has been always in that role with fourteen years in the defendant’s employ.  The consensus of medical opinion is that the plaintiff has a ‘light work’ back and that this is a permanent situation.

291     Whilst some medical examiners did not have knowledge of the circumstances of the termination of the plaintiff’s employment, it was not really put that the lack of history led to an unsafe opinion from those examiners.  It was submitted the plaintiff exaggerated his symptoms and that infected the opinions of various examiners.[78]

[78]T129

292     Further it was submitted that a ‘light work’ back in the plaintiff’s circumstances was not a serious consequence, as the court could not be satisfied what happened on the said date led to serious injury consequences.[79]  The fact the plaintiff did not have a job to go back to “inflated the consequences and the perception of him not working had coloured the medical reports.”[80] 

[79]T131

[80]T132

293     It was submitted, in those circumstances, it was not appropriate to make a connection between the plaintiff not working and the injury on the said date.

294     I do, however, accept there is a connection.  Prior to the said date, the plaintiff worked for the defendant for fourteen years.  He was able to do so uninterrupted and without restriction until the incident.  He reported the incident and sought medical treatment very soon thereafter and was certified as unfit for work from that date.  His employment was not terminated until 2 June 2010, as Mr Street deposed, the plaintiff’s claim having been lodged the previous month.

295 I am satisfied that the interference with employment is, itself, a serious consequence. Further, the plaintiff’s pain and its resultant restrictions on social and domestic activities are also consequences which meet the test of seriousness pursuant to the Act.

296     As the plaintiff’s spinal condition has persisted for nearly four years, I accept his impairment is permanent.

297     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.

Loss of Earning Capacity

298     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).

299     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.

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

301     “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.

302     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.

303     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 - See Barwon Spinners Pty Ltd & Ors v Podolak.[81]

[81]Supra

304     I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.  The parties agreed the “without injury” earnings figure was in excess of $1,000.00 based on gross earnings of approximately $65,000 per annum.

305     Sixty per cent of that figure is $39,000 or $750 per week.

306     I am not satisfied the plaintiff has suffered the requisite loss on a permanent basis.

307     In my view, the most important evidence as to the plaintiff’s employment capacity is that of Dr Zec, who has treated the plaintiff for many years.

308     Dr Zec did not explain adequately why the plaintiff was no longer fit for the full time work he approved following the IPAR report in late 2010.  He attempted to do so by saying the plaintiff’s problems had since been confirmed on imaging but the MRI scan had already been undertaken at the time he certified the plaintiff fit for this range of full time duties.  

309     Although there was ongoing prescription of painkillers, there was no record in Dr Zec’s notes of any deterioration in the plaintiff’s since late 2010 to warrant a change in the certification.

310     The only evidence relied upon by the plaintiff in support of this alleged deterioration was the general comment by Mr Barrett and Professor Myers regarding the natural history of a degenerative condition.[82]

[82]T155

311     In any event, Dr Zec ended up, whilst noting the plaintiff’s unreliability for work, conceding the plaintiff had a capacity for part time work and that it would be a situation of “wait and see” if the plaintiff could work full time.[83]

[83]T148

312     In these circumstances, I am not satisfied any interference with the plaintiff’s earning capacity is permanent.

313     Mr Barrett thought the plaintiff had no capacity for suitable employment when he last saw the plaintiff in July 2011.  At that time, Dr Zec was still certifying the plaintiff fit for light work.

314     Professor Myers and Dr Sutcliffe, occupational physician, whilst of the view the plaintiff had no capacity for suitable employment, did not really explain the basis of their view.[84]

[84]T136

315     In his report following examination in 2013, Mr Brearley appeared to support a capacity for restricted duties on non-specified hours. Later, when provided with the IPAR report of 2010, he suggested the plaintiff had a limited capacity as to twelve hours without explaining the reason for this change in view.

316     Mr Jones just commented generally in 2013 as to a capacity for restricted duties on the basis of a ‘light work’ back not restricting the number of hours the plaintiff could work.

317     The plaintiff himself was prepared to try some work, admitting that he could do some light tasks.  He only applied for jobs he felt capable of doing.[85]  He had applied for full time work through IPAR. He would like try working as a product examiner and doing security work in a building reception.  He would try a static job with some walking.

[85]T62-63, T142

318     There were a number of suitable jobs for the plaintiff suggested in the recent Ayres’ report and save for one job, that of a hand packer earning $749 per week, the plaintiff would not suffer the requisite loss working full time.

319     Taking into account the medical opinion and the plaintiff’s willingness to seek work, I am not satisfied, on a permanent basis, that the plaintiff suffers the requisite loss of forty per cent.

320     Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering in relation to his lumbar impairment and dismiss his application in relation to loss of earning capacity.

321     Having granted leave to bring proceedings for damages for pain and suffering in relation to the lumbar spine, I am not required to consider this issue in terms of the psychiatric impairment claim.

322     However, I am not satisfied that the plaintiff has suffered the requisite loss of earnings in relation to his application pursuant to clause (c).

323     This issue was not really pursued by either counsel in addresses, with counsel for the plaintiff simply relying on the opinion of Dr Nathar that the plaintiff was unfit for work on a psychiatric basis.

324     Counsel for the defendant pointed to the lack of specialist referral and the recent prescription of antidepressant medication three months ago. It was conceded the high point of the plaintiff’s application was Dr Nathar, who, without explanation, suggested that Zoloft would be required for the rest of the plaintiff’s life and also that the plaintiff was totally incapacitated for employment.

325     On this very limited evidence, I am not satisfied the plaintiff has suffered a permanent loss of 40 per cent of his earning capacity as a result of any psychiatric condition.  His application in that regard is therefore dismissed.

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