Rascovici v Steelfield Vic Pty Ltd
[2014] VCC 293
•20 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00956
| STRETCO RASCOVICI | Plaintiff |
| v | |
| STEELFIELD VIC PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 March 2014 | |
DATE OF JUDGMENT: | 20 March 2014 | |
CASE MAY BE CITED AS: | Rascovici v Steelfield Vic Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 293 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back – pain and suffering consequences – range case – capacity to engage in employment after injury – credit of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Ansett Australia Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring common-law proceedings for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan with Mr D Churilov | Zaparas Lawyers |
| For the Defendant | Mr P Hayes | Wisewould Mahony Lawyers |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 29 February 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising in the course of his employment with the defendant. The plaintiff alleges that, more particularly on 8 February 2010, his low-back was injured in a lifting accident in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to his lower back.
3 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined
·Mr David Brownbill, neurosurgeon, gave evidence and was cross-examined and Ms Leonie Schneider, occupational psychologist, gave evidence and was cross-examined
·Exhibit A – Plaintiff’s Court Book (“PCB”) pages 6 to 14.8 and pages 32 to 125.1
·Exhibit B – Entry from Dr Jigau’s clinical notes dated 5 March 2010
·Exhibit C – two pages of the Worker’s Injury Claim Form signed by the plaintiff, dated 10 March 2010
·Exhibit D – Certificate of Capacity dated 15 November 2013
·Exhibit 1 – Facebook profile of the plaintiff
·Exhibit 2 – General practitioner’s clinical notes from 20 July 2009 to 18 May 2010
·Exhibit 3 – Defendant’s Court Book (“DCB”) pages 4 to 24 and pages 29 to 56E and pages 63 to 81.
4 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires a plaintiff to prove that he has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s lower back. Mr Hayes, on behalf of the defendant, identified the following issues as being applicable in this proceeding:
(i) The credit of the plaintiff;
(ii) Whether the consequences of the pain and suffering found by the Court amounted to a permanent serious impairment or loss of body function. In short, this was a “range” case;
(iii) The plaintiff has a current work capacity to perform light duties and consequently has not suffered a 40 per cent or greater loss of earning capacity.
5 The plaintiff was cross-examined exhaustively during the course of this application. Dr Brownbill and Ms Schneider were also cross-examined at length. I will refer to their evidence in the course of these reasons.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in Romania in 1967.[3] The plaintiff had ten years of formal education and then did a training course in fitting and turning for approximately two years. In 1989, the plaintiff, with his wife and son, came to Australia via Yugoslavia as refugees.[4]
[3]PCB 6
[4]PCB 6
10 The plaintiff is a married man with two children, aged twenty-four and sixteen respectively.[5]
[5]PCB 6
11 Upon arrival in Australia in 1989, the plaintiff completed an English course. He then worked on an asparagus farm as a packer for approximately three months. The plaintiff was subsequently employed operating a plastic moulding machine in Dandenong, which he continued for approximately eighteen months. The plaintiff then changed employment to working as a metal polisher for Geordi Stainless Steel. He remained in that employment for some five years.[6]
[6]PCB 7
12 The plaintiff, together with four other co-employees of Geordi Stainless Steel decided to commence their own business manufacturing and polishing stainless steel. He conducted that business with his partners for approximately ten years and sold that business in August 2007.[7]
[7]PCB 7
13 In September of 2007, the plaintiff commenced employment with a stainless steel specialist in Carrum Downs, where he worked as a polisher for a short period, and then left that work to work for the defendant as it paid a higher wage.[8]
[8]PCB 7
14 The plaintiff initially hurt his lower back on 10 May 2008 whilst lifting a steel balustrade in the course of his employment with the defendant. He resumed his normal duties and continued working with the defendant until he was injured on 8 February 2010. The plaintiff received medical treatment and was performing light duties at his place of work.[9]
[9]PCB 8
15 The plaintiff was made redundant by the defendant on 3 March 2010.
16 The plaintiff attended under the auspices of WorkAble Consulting to obtain a soccer coaching accreditation. He attended that course in 2011 and ultimately obtained his certificate to coach soccer. By August 2012, the plaintiff was licensed to coach soccer to juniors and seniors in Provision 1 league.[10] The plaintiff commenced as the coach of the White Eagle Soccer Club in Springvale and was only able to perform one coaching session before being unable to continue.[11]
[10]PCB 14.6
[11]PCB 14.6
17 The plaintiff subsequently, in 2012, attended at the Rowville Eagles Soccer Club to assist in coaching the team. The plaintiff stated that he was unable to continue with that role as his back injury symptoms were too severe to continue.[12]
[12]PCB 14.7
Injury with the Defendant
18 The plaintiff deposed in his affidavit dated 11 October 2011 that on 10 May 2008, whilst lifting a 5-metre stainless steel balustrade, he suffered pain in his back. He was treated by Dr Troedson, his general practitioner, who took an x‑ray. He stated that he was off work for approximately two days. The plaintiff also said that in March of 2009, he had further back pain and attended on a chiropractor in Hampton Park.[13]
[13]PCB 7-8
19 The plaintiff gave evidence that he was hurt most significantly on 8 February 2010. In his affidavit, he stated as follows:
“On the 8th February, 2010 I attended a site at 3 Lorimer Street, Port Melbourne to install steel reinforcement in the roof. This was an unusual job for the employer. I went with Sabin who worked in the steel section. We had to install eight pieces of channel steel with four pieces being about 3.5 metres long by 30 centimetres by 20 centimetres with steel about 15 millimetres thick weighing about eighty kilograms and four pieces about one metre long by 30 centimetres by 20 centimetres by 15 millimeters (sic) thick weighing about twenty three kilograms. The small pieces had to be bolted to a concrete wall about three metres from the floor on opposite walls. The ends of the long pieces were then bolted to the small pieces. We were provided with a mobile scaffold which was erected on site but no mechanical lifting device. The small pieces of steel were to be bolted into the wall about two hundred millimetres below the existing roof. The long piece of steel would then sit immediately under the roof to support it. When positioning the pieces of steel on the wall you had to twist your body to the side to keep your head under the roof. We positioned and bolted the two small pieces and then had to manually lift the large piece into position.
We brought the steel pieces to site using a long wheel based Ute which we moved into the building and then manually moved the pieces about four metres. The building was still being erected. The concrete floor had not been poured. We worked on dirt. The small pieces were manually positioned on the scaffold and then fixed into position. I then assisted Sabin to lift the first of the large pieces onto the scaffold and as I was pushing it up onto the scaffold I became aware of pain in my low back. I continued to try to work installing the first crossbeam. I told Sabin of my back pain. We managed to get assistance from another worker on site being a subcontractor or employee of the builder. My back pain continued. We then had to install two further small pieces of steel and cross pieces on the second level which had a concrete floor with a roof about the same height from the floor. I managed to assist with this installation but had a burning and tight feeling in my back. I thought it would get better. I had some Voltaren with me which I took occasionally for right knee and back discomfort.”[14]
[14]PCB 8, paragraphs 7 and 8
20 The plaintiff returned to work at the defendant’s factory on that day. He continued his work but limited the amount of lifting he performed. His back pains did not improve and he attended on his general practitioner, Dr A Freund, on 11 February 2010.
21 On 3 March 2010, the plaintiff was made redundant by the defendant.[15]
[15]PCB 9
22 On 5 March 2010, the plaintiff attended on Dr Jigau, general practitioner. This was the first occasion that the plaintiff had consulted Dr Jigau.[16]
[16]PCB 9
23 In the course of the proceeding and submissions made on behalf of the defendant, initially the issue of causation in respect of the injury to the plaintiff’s lower back was in dispute. In the latter part of the closing submissions by Mr Hayes, on behalf of the defendant, he stated:
“Your Honour, I have obtained instruction we won’t take the point on causation.”[17]
[17]Transcript (“T”) 161, Lines 18-19
24 That admission made on behalf of the defendant, combined with the evidence of the plaintiff that he had received compensation payments and payment for medications by the defendant lead me to the conclusion that the plaintiff was injured in the course of his employment with the defendant on 8 February 2010 in the manner described by him.[18]
[18]See Ansett Australia Ltd v Taylor [2006] VSCA 171
Medical treatment
25 The plaintiff first sought medical treatment in respect of the low-back injury on 11 February 2010. On that day, he attended his general practitioner, Dr Freund. Dr Freund’s clinical note states as follows:
“4/7 Lower Back Pain, radg to L Leg bending over old inj 4yrs lifting heavy oln a scaffold last.
[On examination] full … [range of movement] painful L leg.” [19]
[19]Exhibit 2
26 Dr Freund ordered an x-ray and CT scans to be performed. He prescribed the plaintiff with Panadeine Forte.
27 The plaintiff returned to Dr Freund on 24 February 2010.[20]
[20]Exhibit 2
28 On 26 February 2010, the plaintiff attended on Dr Elias at the Southern Cross Medical Centre. The plaintiff deposed that he had difficulty explaining his symptoms to Dr Elias on that occasion.[21]
[21]PCB 9
29 The plaintiff returned to Dr Freund on 2 and 4 March 2010. I note that on the occasions when the plaintiff attended Dr Freund on 11 February 2010 and 24 February 2010, he was given a medical certificate.[22] It was unclear from the evidence whether the plaintiff had handed those certificates to his employers at that time. I understood the plaintiff’s evidence to be that he attended work subsequent to his injury until the time of his redundancy on 3 March 2010.
[22]Exhibit 2
30 The plaintiff first attended upon Dr Jigau on 5 March 2010. The plaintiff has been attending Dr Jigau as his general practitioner since that time. The plaintiff had x-ray and CT scans on his lumbar spine on 25 February 2010.[23] On 5 March 2010, the plaintiff had a further CT scan on his lumbar spine.[24] On 26 May 2010, the plaintiff had an MRI scan of his lumbar spine.[25] The plaintiff has had a recent MRI scan of his lumbar spine on 8 March 2013.
[23]PCB 66
[24]PCB 68
[25]PCB 67
31 The plaintiff was referred to Mr Brian Barrett, orthopaedic surgeon, by Dr Jigau. Mr Barrett examined the plaintiff on 19 August 2010. Mr Barrett’s opinion was that the future treatment for the plaintiff should be conservative in nature, and he stated that the three ruptured lumbar discs did not lend themselves to any operative treatment being of any help to the plaintiff.[26]
[26]PCB 39
32 The plaintiff was then referred to Mr Drnda, neurosurgeon. Mr Drnda saw the plaintiff in August of 2011. Mr Drnda’s opinion was that the plaintiff was not a candidate for surgery. Mr Drnda agreed with the findings of the MRI scan in May of 2010. Mr Drnda’s opinion was that the numbness in the plaintiff’s left thigh was probably as a result of a meralgia paraesthetica. This diagnosis is consistent with that diagnosis made by Mr Brownbill.[27]
[27]PCB 43
33 In November 2012, the plaintiff attended upon Mr Justin Hunt, orthopaedic surgeon. Mr Hunt was of the opinion that surgical intervention would not be of assistance to the plaintiff. His recommendation was a pain management program was the best way forward for the plaintiff.[28]
[28]PCB 48
34 The plaintiff has also received treatment from Dr Clayton Thomas, consultant in rehabilitation and pain medicine, in September of 2012. Dr Clayton Thomas referred the plaintiff to the Victorian Rehabilitation Centre for a pain management program.[29]
[29]PCB 56
35 The plaintiff attended at the Victorian Rehabilitation Centre Pain Management Program between 21 October 2013 and 29 November 2013. The plaintiff has subsequently received physiotherapy, occupational therapy and psychological treatment as a result of that program.[30]
[30]PCB 50-54
36 The plaintiff’s ongoing treatment is monthly visits to Dr Jigau, his general practitioner. The plaintiff, in the past, has taken Endone medication for the relief of his pain symptoms. He currently has prescribed Panadeine Forte, Endone, valium and Sertraline.[31]
[31]PCB 14.2-14.3
Medical opinions
Radiological examinations
CT scans
37 On 15 December 2005, the plaintiff had a CT scan of his lumbar spine. The CT scan was reported as follows:
“At L4-L5 there is a shallow broad based disc bulge without significant secondary effect. Central canal and exit foramen remain inadequate.
At L5-S1, there is a shallow broad based disc bulge. Central canal remains adequate. The exit foramen remain adequate also.
Conclusion:
There is relatively mild degenerative disc disease in the lower lumbar spine. There is however no significant canal or nerve root compromise.”[32]
[32]PCB 65.1
38 The scan above was performed before the accident complained of by the plaintiff and his employment with the defendant.
39 The plaintiff was subsequently examined by way of CT scan to his lumbosacral spine on 25 February 2010. The CT scan was reported as follows:
“Axial scanning performed using soft tissues and bone window settings with sagittal reconstruction.
L4-5 DISC SPACE
A broad based disc bulge seen causing flattening of the thecal sac without evidence of nerve root compromise.
Bilateral mild facet joints osteoarthritis.
L1-2, L2-3, L3-4 & L5-Sl DISC SPACE
Unremarkable apart from bilateral mild facet joint osteoarthritis.
Conclusion
A broad based disc bulge seen at L4-5 disc space without evidence of nerve root compromise.
Bilateral multilevel mild facet joints osteoarthritis.[33]
[33]PCB 66
40 The final CT scan for the plaintiff was performed on 5 March 2010. It was reported as follows:
“Clinical Notes:
Left sciatica.
Findings:
Axial scans performed from LI to S1 with angled slices through lumbar disc spaces.
There is satisfactory lateral alignment.
The vertebral body heights are preserved.
There is no spondylolisthesis.
Numerous Schmorl[s] nodes along the inferior endplate of T12 and inferior endplate of L1.
No spondylolisthesis.
There is a posterior disc bulge at L5/S1.
The disc bulge extends to the left exit foramen.
Facet joints are normal.There is no paravertebral mass.
Conclusion:
Broad-based posterior disc bulge at L5/S1 contacts the thecal sac extending to the left exit foramen which is narrowed.
No other abnormality.No canal stenosis.”[34]
[34]PCB 68
41 In the latest CT scan report, the main difference appears to be the disc bulge extending to the left exit foramen.
42 The plaintiff has also had two MRI scans, the first performed on 26 May 2010 and the second one performed on 8 March 2013. The first MRI report dated 26 May 2010 noted as follows:
“Findings
The lumbar vertebrae are normal in height and alignment. No marrow signal abnormality is identified. The arch elements are normal. No evidence of listhesis.
Small Schmorl’s node noted at the L5-S1 level along the inferior margin of the L5 vertebral body. Schmorl’s nodes are also noted at T12 and L1 vertebral levels.
At the L1-L2 and L2-L3 levels, no significant disc bulge. The central canal is within normal limits. No neural foraminal narrowing.
At the L3-L4 level, no significant disc bulge is identified. The central canal and the neural foramina are within normal limits.
At the L4-L5 level, there is a mild broad based disc bulge slightly more apparent along the left paracentral neural foraminal level. The central canal is within normal limits.
There is mild effacement of the neural foramina on the left.
The exiting nerves are intact. The traversing nerve is in close contact with the bulging discs on the left side.
At the L5-S1 level, there is a mild left paracentral bulge. No significant central canal or neural foraminal narrowing. A small posterior osteophyte noted projecting into the left neural foramen.
The exiting nerves are intact.
The traversing nerves are not impinged.
The conus medullaris is of normal signal and morphology.
Paraspinal soft tissues are normal.
CONCLUSION
Minimal degenerative changes in the lumbar spine with mild bulging disc at the L4-5 level as described.”[35]
[35]PCB 67
43 The second MRI scan was performed on 8 March 2013. The findings were as follows:
“Findings
Normal alignment and marrow signal. No stress reaction or pars defect. Five lumbar vertebrae. The conus terminates appropriately with normal cauda equina.
T12/Ll: Nominal focal central posterior disc protrusion without central canal or foraminal stenosis.
L1/2, L2/3 and L3/4: Normal posterior disc contour. No central canal or foraminal stenosis.
L4/5: Broadbased posterior disc protrusion effacing the anterior thecal sac. Mild foraminal stenosis. No neural compressive.
L5/Sl: Nominal broadbased posterior disc protrusion without central canal stenosis. Mild foraminal stenosis. No neural compressive. Mild facet degeneration.
Normal paraspinal soft tissues.
Comments
No central canal or neural compressive foraminal stenosis to account for the patient’s left radicular symptoms.”[36]
[36]PCB 69
44 It is these radiological reports that the medical practitioners are referring to when giving their opinions about the condition of the plaintiff.
Dr Constantin Jigau
45 Dr Jigau, general practitioner, prepared two reports, dated 21 June 2012 and 10 February 2014. In his second report, Dr Jigau reviewed the MRI radiological reports and stated it is clear where the plaintiff’s pain comes from.[37]
[37]PCB 35.2 and 35.4
46 Dr Jigau states that the plaintiff is unable to work or function normally and this is causing him to be depressed when looking at his life.[38]
[38]PCB 35.3
47 Dr Jigau states his opinion as follows:
“It is my opinion that Mr. Rascovici[‘s] condition will never improve to be able to do his previous job or similar, involving lifting, bending, rotation from his lumbar spine. He will not be able to do a job involving standing or sitting for long periods of time. In the same time, he may experience severe exacerbations like the once explained above when he may have to use heavy painkillers, which cause drowsiness and other side effects.”[39]
[39]PCB 35.5
48 In conclusion, Dr Jigau is of the opinion that the plaintiff cannot return to his previous employment. He places restrictions on the plaintiff’s ability to work, stating that he is not able to stand or sit for long periods of time. Dr Jigau continues to certify the plaintiff as unfit for any duties. Exhibit D applies for the period 19 November 2013 to 17 December 2013. The evidence is that the plaintiff’s condition has not changed since that time.
Mr Brian Barrett
49 Mr Barrett, orthopaedic surgeon, prepared a report dated 6 April 2011. He also responded to a letter from the plaintiff’s solicitors dated 1 May 2013. This letter included handwritten comments by Mr Barrett.[40]
[40]PCB 41
50 Mr Barrett’s opinion is that the plaintiff has suffered painful ruptures involving his three lower lumbar intervertebral discs, particularly at the lower two discs, injuries that have no significant capacity to heal or repair.[41]
[41]PCB 39
51 Mr Barrett went on to say that the further treatment for the plaintiff would need to be of a conservative nature and would make any form of operative treatment unlikely to be helpful, given that he has three ruptured lumbar discs. Mr Barrett’s opinion was that the prognosis was poor as there was a minimal capacity for the ruptured discs to heal or repair. Mr Barrett’s opinion was that the plaintiff would suffer significant low-back pain for the foreseeable future.[42]
[42]PCB 39
52 In his response to the plaintiff’s solicitor’s letter and the question:
“Do you consider our client has a capacity for alternative light duties?
Mr Barrett has written the word “No” and signed that letter.[43]
[43]PCB 41
Mr Armin Drnda
53 Mr Drnda, consultant neurosurgeon, prepared a report in this matter dated 16 August 2011. Mr Drnda’s opinion in respect of the MRI scan was as follows:
“MRI scan from May, 2010 showed that discs L4/5 and L5/S1 are desiccated with very mild bulge but no neural compression whatsoever. Disc L3/4 is only marginally desiccated and funnily only on the right side and on the left side there still hydration. No neural compression was found anywhere along the spine.”[44]
[44]PCB 43
54 Mr Drnda noted that the pain and numbness in the plaintiff’s left thigh could be as a result of meralgia paraesthetica. He did not connect the thigh pain with the lower back injury. In Mr Drnda’s opinion, the plaintiff was not a candidate for surgery. Mr Drnda did not offer any opinion as to the plaintiff’s work capacity.
Mr Justin Hunt
55 Mr Hunt, orthopaedic surgeon, prepared a report dated 16 May 2013. Mr Hunt diagnosed the plaintiff as follows:
“Mr Rascovici’s diagnosis is that of symptomatic lumbar spondylosis (degenerative disc disease and facet joint arthritis) with back pain and associated leg pain symptoms. Clinical presentation is consistent with a back injury. There is no overt evidence of nerve impingement or compression, however some patients do not have evidence of this but still have referral of pain to the leg from other damaged structures in the lumbar spine.”[45]
[45]PCB 47
56 Mr Hunt was of the opinion that surgery would not assist the plaintiff, and recommended that he undertake a pain management program. Mr Hunt was of the opinion that because of the plaintiff’s symptoms, he would have difficulty sitting, standing, bending or lifting. Mr Hunt opined that the plaintiff was no longer suitable to perform his work as a metal polisher.[46] Mr Hunt did not give any opinion as to the plaintiff’s future employment prospects.
[46]PCB 49
Dr Clayton Thomas
57 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, prepared three reports in respect of this application, dated 22 December 2013, 16 January 2014 and 3 March 2014. Dr Thomas advised the plaintiff to cease his use of Endone.[47] Dr Thomas’ opinion is:
“… I accept that he has symptomatic spondylosis from his lumbar spine. I accept that he has left sciatica without nerve root compromise. I accept that he is not able to return to preinjury work employment. The prognosis is poor from an ongoing disability perspective. When I initially saw him, I thought there was a nonorganic component here. As such, as a result of both physical organic and nonphysical nonorganic components, he does not present with work capacity.”[48]
[47]PCB 56
[48]PCB 58
58 Dr Thomas clarified that opinion in his last report dated 3 March 2014 to state that the plaintiff suffered from physical organic symptoms which were the dominant basis for his incapacity. He noted that the plaintiff’s emotional distress was consequent upon the physical injury.[49]
[49]PCB 58.1
Mr David Brownbill
59 Mr Brownbill, neurosurgeon, prepared four reports, dated 19 March 2012, 10 January 2013, 12 February 2014 and 26 February 2014. Mr Brownbill also gave evidence and was cross-examined.
60 In his report dated 10 January 2012, Mr Brownbill stated that:
“C/.I consider he has sustained aggravation of lumbar spine degenerative changes with likely associated disc damage.
D/.He is not capable of returning to his full pre injury physical employment activities.
He should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
From a physical neuro surgical point of view I consider he would be capable of alternative lighter duties. The number of hours he could work would be dictated by his response to such physical activity.
E/.No specific treatment is indicated from a neurosurgical point of view. The use of analgesics particularly during periods of pain exacerbation is appropriate.
F/.I anticipate that pain will continue in a fluctuating manner indefinitely.”[50]
[50]PCB 69.10 – 69.11
61 In his two reports in February of 2014, Mr Brownbill stated that the plaintiff may be able to perform alternative duties for a likely 20 hours per week. In his evidence, Mr Brownbill stated that it was more appropriate to describe his opinion as the plaintiff being able to attempt that type of employment.[51] Mr Brownbill, in his opinions and his evidence, stated that there was no radiculopathy from the back injury to the plaintiff’s legs.
[51]T79
62 Mr Brownbill gave an opinion that the plaintiff was not embellishing his symptoms at the time of his examination. In cross-examination, he was challenged by Mr Hayes on this issue. The following evidence was given:
Q:One possible explanation for that is he’s exaggerating or that there are other reasons unrelated to his lower back?---
A:Always a possibility.
Q:Thank you. Might I suggest to you in this case it’s more likely than not the plaintiff is exaggerating based on the information you now have that you didn’t have at the time you did your report?---
A:That was not my assessment at the time and I don’t come to that conclusion, no.”[52]
[52]T85, L22-30
63 Mr Brownbill stated that he was not satisfied that you could confidently predict what a patient’s symptoms were by merely examining the radiological investigations of his back.[53]
[53]T78
64 A fair reading of Mr Brownbill’s evidence is that, accepting the plaintiff’s history of pain after the incident complained of, that the plaintiff had suffered a significant back injury. Mr Brownbill was not prepared to be drawn into a detailed discussion of disc injuries and various levels within the back. His evidence was that he focused on the lower back.[54]
[54]T89-92
65 I have had the advantage of seeing Mr Brownbill give his evidence and be extensively cross-examined. Mr Brownbill was prepared to make the relevant and appropriate concessions in cross-examination. It was clear from his evidence that he accepted that the plaintiff had injured his back in the incident in February 2010 and that the injury was to the lower back. Mr Brownbill did not accept that the radiculopathy or pain down the plaintiff’s legs was as a result of the lower back injury. In essence, he was saying the plaintiff’s future employment capacity was speculative and limited to 20 hours per week of alternative duties. Mr Brownbill was relying on the response by the plaintiff to attempt to do that work.
Mr Charles Flanc
66 Mr Flanc, general surgeon, prepared a report dated 17 December 2012. Mr Flanc was of the opinion that the plaintiff’s condition had stabilised. He stated it is likely that the plaintiff will continue to suffer from low-back pain which fluctuates in severity and will continue to influence his capacity for employment.[55]
[55]PCB 120
67 Mr Flanc went on to state that the plaintiff would not be able to return to any work involving heavy lifting, bending, twisting or climbing. He stated that work as a security guard at a gatehouse may be suitable, depending on the plaintiff’s ability to move about when the discomfort became more severe. He also suggested that a supervisor role in stainless steel polishing may be appropriate in a theoretical sense. Another avenue of work for the plaintiff may be a machine operator or a product tester examiner. Mr Flanc stated:
“I believe that it would be reasonable to attempt one of these occupations, at least on a part-time basis initially (perhaps four hours per day on alternate days). If he coped with this, then his hours could be extended.”[56]
[56]PCB 121
68 In summary, Mr Flanc was stating that the plaintiff could work approximately 12 hours per week in a light duty environment.
Mr Chris Haw
69 Mr Haw, orthopaedic surgeon, prepared two reports, dated 18 January 2013 and 27 February 2014. Mr Haw diagnosed the plaintiff as suffering from disc degeneration at L4-5 and L5-S1 with facet joint arthritis in the left L5-S1 facet and mild L4 root irritation on the left side.[57]
[57]PCB 124
70 Mr Haw went on to say that a possible treatment may be facet injection with steroid, which may be followed by a two-level spinal fusion. In this regard, Mr Haw is the only medical practitioner who is suggesting such a radical surgical course.
71 Mr Haw accepted the genuine nature of the plaintiff’s complaints of injury and pain. In his view, the plaintiff may be capable of initially working a 20-hour sedentary or supervisory type position, graduating to full-time capacity if the plaintiff could manage the symptoms.[58]
[58]PCB 125.1
Leonie Schneider
72 Ms Leonie Schneider, vocational psychologist, prepared a report dated 16 April 2013. Ms Schneider was required for cross-examination by the defendant.
73 Ms Schneider gave evidence that she had been a vocational psychologist involving in the rehabilitation and vocational assessment of injured workers and their re-entry to the workforce for a period of thirty-five years. I accept that she is a very experienced person in this area of expertise. Ms Schneider gave evidence of a 4-hour interview and assessment of the plaintiff in order to ascertain what his prospects of employment were.
74 In her report, Ms Schneider analyses the prospects of the plaintiff being employed driving a heavy truck, security guard, parking officer, leaflet and newspaper distributor/deliverer, courier and supervisor.
75 Ms Schneider concludes that, as a result of his work-related injuries, the plaintiff has a 100 per cent loss of earning capacity and she suspects that the incapacity will be indefinite and irretrievable into the future.[59]
[59]PCB 90
76 Ms Schneider, in her evidence, stated that she accepted the medical opinions given by all of the doctors, including Associate Professor Brazenor, in making her assessment as to the employment capacities of the plaintiff given his symptoms and medical condition. In particular, she stated:
Q:“So in terms of this man’s physical ability you have deferred to the medical opinions of his physical capabilities of Dr Brownbill and Associate Professor Brazenor?---
A: Yes, theoretically there is a capacity to do light work.”[60]
[60]T96, L23-25
77 Ms Schneider stated that her view of the plaintiff’s future work capacity was a realistic position.[61]
[61]T100
78 In particular, in relation to the security guard type employment, Ms Schneider stated that the plaintiff was unsuited for that work on the simple basis that he would be unable to do CPR resuscitation. In short, he could not get a job and be put in a position to have to perform the CPR activity.[62]
[62]T105
79 Ms Schneider was also challenged about the plaintiff’s ability to be a supervisor in the polishing of stainless steel. The evidence was:
Q:“There is nothing to stop him supervising polishing stainless steel, inspecting the work and making sure it was up to standard, is there?---
A:I thought the same thing too until I started to ring around the industry and I rang a large company, medium sized company and a small company in the industry and they said that is not actually the case, the industry doesn’t employ supervisors per se and it doesn’t employ people to do a part of a job.
Q:There is no mention of these people you phoned in your report, is there?---
A:Yes, there is, I will get you ---
Q:Is it on page 12 buried away in the footnote there?---
A:No, it’s not, it’s footnoted.
Q:I’m sorry?---
A:It is footnoted.”[63]
[63]T108, L9-21
80 Ms Schneider went on to say that she had made enquiries of the industry, both in the country and in the city, and also at the varying sizes of firms. Her evidence was that there was no such thing as a supervisory role in that industry. Ms Schneider stated that in order to properly determine the alternative employment, such employment had to be safe, durable and realistic.[64]
[64]T112
81 I accept the evidence of Ms Schneider. I accept that she is a person of considerable and appropriate expertise and experience to make a realistic assessment of the plaintiff’s future work capacity given her acceptance of the medical opinions about the plaintiff’s capacities and his restrictions. Her evidence is that the plaintiff has no future work capacity, either as alternative duties, and certainly not in his pre-employment circumstances.
Dr Barry Gilbert
82 Dr Gilbert, occupational physician, prepared two reports, dated 3 May 2010 and 16 January 2012. Dr Gilbert’s opinion is that the plaintiff is incapacitated indefinitely for his pre-injury employment. Dr Gilbert states that the plaintiff, as at January 2012, had a current work capacity:
“In my opinion the worker does, however, have a current work capacity.
He would need to be able to sit, stand and walk on a self-managed basis as determined by his symptoms, and he would not be fit to perform any form of lifting, bending or squatting, particularly below waist height.
Provided employment could meet those restrictions, he does retain a work capacity.”[65]
[65]DCB 18
83 Dr Gilbert goes on to say that, given the poor response to conservative treatment, that the plaintiff’s prognosis was poor.[66] I note that Dr Gilbert refers to surveillance film when forming his opinion. This surveillance film was not shown to the plaintiff in the course of this application.[67]
[66]DCB 20
[67]DCB 21
Mr Edward M Schutz
84 Mr Schutz, consultant surgeon, prepared a report dated 4 May 2011. This report is somewhat outdated at the time of the application and is limited in its assistance to the Court in determining this application. However, Mr Schutz does note that the plaintiff now has a symptomatic lumbar spine degeneration and is not fit to do heavy manual work requiring a lot of bending and lifting. At that time, he was of the opinion the plaintiff would be fit to return to his former pre-injury duties as a stainless steel polisher.[68]
[68]DCB 37
85 I do not accept that the plaintiff has any capacity to return to his previous employment and reject this aspect of Mr Schutz’s opinion.
Associate Professor Graeme Brazenor
86 Professor Brazenor, neurosurgeon, prepared four reports for this application, dated 30 December 2011, 22 November 2012, 9 September 2013 and 3 March 2014.
87 In his first report, Professor Brazenor reviewed the radiological examinations referred to earlier and then the report of consultant neurosurgeon, Mr Drnda; the chiropractor, Mr Morley and Dr Troedson, general practitioner. He took a history from the plaintiff and then stated as follows:
“I asked Mr Rascovici what I first declared to be a very important question: I asked him whether during the year 2011 he had improved at all. He replied ‘not much’.”[69]
[69]DCB 45
88 Professor Brazenor concluded as follows:
“This man had scans within normal limits for his 43 years in 2010, with mild degenerative changes in the L4/5 and L5/S1 discs and to a lesser extent in L3/4. His scans at that time do not imply pain or disability.
On examination there is quite blatant malingering behaviour, and not a single objective physical sign.
It is therefore my considered opinion that on the balance of probabilities any soft tissue injury which this man sustained on 8th February 2010 has long since healed. Indeed we do not see a disc injury per se in either of those scans. …
… Mr Brien Barrett … Therefore his habitual allegation that disc injuries ‘have no significant capacity to heal or repair’ is irrelevant in this case as there are no disc injuries.
On the balance of probabilities, attempting to peer through Mr Vascovici’s (sic) malingering today, I believe that he is capable of full time employment, but not at any job which involves repeated bending at the waist, the repeated accessing of levels below his waist, or the lifting of heavy objects. These restrictions are not due to soft tissue injuries he incurred on 08.02.2010. Rather they are a consequence of the degenerative changes demonstrated in his low back on CT and magnetic resonance scan, accumulated over his 43 years to that time.
Jobs that Mr Rascovici is clearly capable of doing would include driving a heavy truck where he did not have to manually handle the freight or tarp the load; he could be a security guard on patrol around factories at night or in a shopping centre during business hours; or he could be a security guard manning a control centre. He could be [a] parking officer or could deliver leaflets, or he could be a courier for lightweight articles.”[70]
[70]DCB 47-48
89 In his next report dated 22 November 2012, Professor Brazenor continues with a disapproval of the opinions of Dr Barry Gilbert and Mr Brownbill. He accused Dr Jigau, the general practitioner, of naïvely accepting everything that the plaintiff tells him.[71]
[71]DCB 51
90 Professor Brazenor gives his opinion as at 22 November 2012 as follows:
“I disagree with those practitioners who describe the degenerative changes in Mr Rascovici’s lumbar spine as in any way severe, and even giving Mr Rascovici the benefit of the doubt the most discomfort that he could have, bearing the magnetic resonance scan that he does, is [sic] some mild low back discomfort ± mild referred pain down the left leg if he bends or lifts or sits in bad chairs.”[72]
[72]DCB 54
91 I note that the restrictions Professor Brazenor places on the plaintiff as at November 2012 are exactly the same restrictions as Mr Brownbill has placed on the plaintiff.
92 In his final part of his report in November 2012, Professor Brazenor suggested that surveillance of the plaintiff would be a good idea and that, on the balance of probabilities, that the plaintiff has no physical symptoms whatsoever arising from his alleged injury.[73]
[73]DCB 55
93 In his report dated 9 September 2013, Professor Brazenor criticises the radiologist reporting on the MRI scan dated 8 March 2013. He opines that the referral of the plaintiff to a pain therapist, Dr Andrew Muir, is tantamount to a declaration that the plaintiff has no cause for his alleged symptoms.[74] Professor Brazenor goes on to criticise Mr Brian Barrett and Mr Chris Haw, orthopaedic surgeons, in respect of their conclusions. He concludes his report by stating:
“… He is clearly fit for full-time employment to normal retiring age of 65 years, and giving him the benefit of the doubt I would suggest that he not do a job involving repeated bending at the waist, heavy lifting, or vigorous pushing or pulling movements. … .”[75]
[74]DCB 56b
[75]DCB 56c
94 Professor Brazenor, in all four of his reports, variously challenges and disagrees with medical colleagues, be they orthopaedic surgeons or neurosurgeons. He describes the plaintiff as a “blatant malingerer”.
95 Professor Brazenor is the only reporting expert who finds that the plaintiff is a blatant malingerer. I do not accept that assessment. Each of the other medical examiners accepted that the plaintiff was not embellishing or exaggerating his symptoms. Some of the examiners did note that there was a psychological impact upon the plaintiff’s situation but did not go the next step and say that the plaintiff was embellishing his symptoms. The unusual and unnecessary attack on fellow medical assessors is also a concern when trying to assess the impartiality of a medical witness in an application such as this, especially when that witness is not cross-examined. I do not accept the opinion of Professor Brazenor in this case.
Dr Dominic Yong
96 Dr Yong, occupational physician, has prepared two reports, dated 26 November 2012 and 8 October 2013. Dr Yong’s opinion was that the plaintiff had a current work capacity with the following restrictions:
“ ● Avoid repetitive bending and twisting the back.
● Avoid firm pushing or pulling.
● Vary posture regularly between sitting, standing and walking.
● Avoid lifting more than 5ks on a repeated basis.”[76]
[76]DCB 68
97 Dr Yong also stated that the role of supervisor of stainless steel polishing would comply with the restrictions as set out in his report. I note the evidence of Ms Schneider, stating that there is no such thing as this role or employment.
98 In his last report dated 8 October 2013, Dr Yong gave the opinion that the role of console operator was something that the plaintiff would be able to perform as an alternative employment.[77]
[77]DCB 70h
The credit of the Plaintiff
99 The credit of the plaintiff was very much in issue in the conduct of this application. In the course of cross-examination, the plaintiff was challenged about not having corroborative evidence by way of affidavit from Sabin to verify the accident that the plaintiff was complaining occurred at his work. The following exchange took place:
Q:But you agreed with me earlier you haven’t tracked down Sabin or called Sabin as a witness in this application, do you recall that answer?---
A:I don’t have to call Sabin, I don’t work for Sabin, I was working for Steelfield and my manager was Julian Watson, I have to report to Julian Watson, not Sabin, because Sabin wasn’t my boss.”[78]
[78]T34, L20-26
100 The cross-examination along these lines continued. The plaintiff stated that he had reported the matter to the factory and no one took notes.[79]
[79]T35
101 The high point of this line of cross-examination and attack on the plaintiff’s credit occurred in the following evidence:
Q: “Yes, on 8 February?---
A: Well, what is it you’re suggesting?---
Q:I’m suggesting to you the 8 February incident did not happen at all and the symptoms you were experiencing---?---
A:No.
Q:In February and March 2010 was a flare-up of your old lower back problem, do you accept that?---
A:No, that’s not correct, that’s not correct, that is not correct, there was a witness there.”[80]
[80]T37, L15-21
102 It was clear at that stage of the application that the defendant was attacking the plaintiff’s credit in respect of whether the incident on 8 February 2010 even occurred. As I have previously noted in these reasons, at the end of the hearing, the defendant abandoned the issue of causation in this case.
103 Originally, the defendant was relying on the Jones v Dunkel[81] principle in respect of the non-calling of Sabin, the witness to the incident alleged by the plaintiff. The plaintiff responded through Mr Riordan of counsel on the basis that the principles of Ansett Australia Ltd v Taylor[82] applied, because the defendant had paid weekly compensation payments and ongoing medical payments and treatment costs for the plaintiff as a result of this claim.
[81](1959) 101 CLR 298
[82][2006] VSCA 171
104 It was clear from the reporting by the plaintiff on 11 February 2010 to his general practitioner that he has consistently outlined, right from the earliest time, how the injury occurred to his back.
105 I accept that the plaintiff accurately and appropriately describes the symptoms that he suffers as a result of his back condition. Whilst the plaintiff, during the course of cross-examination, displayed some outbursts of emotional response to pressing questioning by Mr Hayes, on behalf of the defendant, I do not accept that he is exaggerating his symptoms in any way.
106 The plaintiff, in his personal history, has displayed a willingness and ability to continue to be in employment. He has worked in various employments up until the time of this back injury in February 2010. On the suggestion that the plaintiff was exaggerating, the following evidence was given:
“I’m not faking, I’m not capable of doing those jobs, if I’m capable of doing those jobs I will keep my job and was working all my life, I don’t have to fake for a job, I want to work, I’m prevented from working with my injury, I want to work.”[83]
[83]T57, L8-16
107 I accept that the plaintiff is motivated to work if he was physically able to do so.
108 The plaintiff was cross-examined about his day-to-day activities and his attempts to perform minor maintenance work around his home. The plaintiff accepted that he was a competent handyman. The following exchange of evidence then took place:
Q:“What I’m suggesting to you is all the usual day to day tasks, conceded with a little difference, you have little trouble undertaking them such as taking the rubbish unit, doing the odd bit of handiwork around the house, doing some cooking, driving for less than 30 minutes a day?---
A:Yes, that’s correct, I do all those things.
Q:All the sorts of things that regular people do?---
A:Yes.
Q:You undertake it albeit with some pain, don’t you?---
A:Yes.
Q:Then I will ask you again, you do have the capacity, don’t you, to undertake work involving lighter duties of the kind described by Dr Yong, don’t you?---
A:That’s correct, I can do light work.
Q:Sorry.
A:Correct.”[84]
[84]T39, L30 – T40, L12
109 Mr Hayes, in his submissions, relied upon this evidence to support the proposition that the plaintiff accepted that he was able to do light duties. This is an example of the honesty of the plaintiff in the manner in which he has approached this application. He clearly acknowledges and admits that he can do certain light duty tasks. He has clearly expressed a desire to enter into the workforce. However, he is following his medical advice from Dr Jigau, who continues to certify him as unfit for all duties. That is a reasonable course for the plaintiff to take.
110 In conclusion, I find that the plaintiff was a reliable and honest witness. He was a witness who impressed as someone who was prepared to make the appropriate concessions and did not try to exaggerate his symptoms or current position.
Consequences of the low-back injury to the Plaintiff
111 In assessing the consequences of the low-back injury to the plaintiff, I rely upon the contents of his affidavits, dated 11 October 2011, 19 December 2012 and 5 March 2014. I also rely upon the evidence given by the plaintiff during the course of this application, some of which I have already referred to in these reasons.
Sleep
112 In his first affidavit, the plaintiff stated:
“When trying to sleep I prefer to do so on my right side with my knees bent. Lying on my left side seems to cause more back and left leg pain. Lying on my back is not as bad but after about an hour the back pain seems to increase. It is hard to remain comfortable. I wake because of back pain most nights and when this happens I usually take Panadeine Forte or Mersyndol Forte.”[85]
[85]PCB 12, paragraph 22
113 The plaintiff was not challenged in the course of giving his evidence about this impact upon his sleep. I accept that the plaintiff continues to have interruption to his sleep as a result of his low-back pain and that that interruption to his sleep is a very considerable consequence for him.
Pain
114 The plaintiff gave evidence that he suffered pain on a daily basis. He maintained in his evidence that his pain was to his lower back and radiating into his leg. The medical evidence does not support the radiculopathy of the pain into his lower limbs coming from his back. I accept that the plaintiff does have low-back pain. The pain in his back limits the level and amount of activity that he can engage in on a daily basis. The plaintiff, in the course of his evidence, described how he was attaching a peg for clothes in a wardrobe of a bedroom. He described he was putting two screws in to hold the peg in position when he experienced an exacerbation of pain to his low back and could not continue such a simple task.[86] The plaintiff is and has been constantly medicated for pain relief.
[86]T58
115 The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a very considerable consequence. I find that the pain endured by the plaintiff as result of his low-back injury is a very considerable consequence for him.
Medication
116 The plaintiff is currently prescribed medication by his general practitioner, Dr Jigau. The plaintiff takes two Panadeine Forte tablets per day in the morning. On occasion, he takes Endone tablets if his back pain is worse. The plaintiff also takes valium in the evening, before he goes to bed, to assist with him sleeping. The plaintiff also takes Sertraline for depression and Voltaren. In his evidence, he stated the Voltaren was for his right knee.[87] The Voltaren medication, which is an anti-inflammatory medication, would have some beneficial relief for his low back. The plaintiff will continue to require medication to alleviate his pain symptoms into the foreseeable future. The fact that the plaintiff requires such heavy pain-relief medication and into the foreseeable future, is a very considerable consequence for him.
[87]PCB 14.2 and 14.3
Ongoing treatment
117 The plaintiff is continuing to receive pain-relief medication. This medication is supervised by his general practitioner. The plaintiff has also been referred by specialists to a pain management course which he completed in the latter part of 2013. A necessity for the plaintiff to continue to be treated for his low-back pain in the manner described in the evidence is a considerable consequence for him.
Sport
118 The plaintiff, in his first affidavit, set out his enjoyment of fishing at Echuca and Yarrawonga. He stated that he was unable to continue with this activity due to the injury to his lower back. He described in his affidavit that he had difficulty about travelling to the venues and the necessity for him to lie in the back of the car whilst his wife drove.[88] The plaintiff was not challenged about this aspect of the consequences when he was giving evidence in Court. I accept that the plaintiff’s ability to engage in the sport of fishing or activity of fishing has been taken from him as a result of the low-back injury. This interference with the plaintiff’s enjoyment of life is a considerable consequence for him.
[88]PCB 13, paragraph 25
Activities of daily living
119 The plaintiff has deposed to his attempts to continue with the activities of daily living and the tasks of putting out the rubbish bins and the like around the house. He gave evidence he was unable to continue with the gardening. I accept that the plaintiff is doing the best he can in maintaining the activities of daily living around his domestic home so that the family life is not interrupted. I find that he is prepared to do this, despite his pain, and it is an indication of the plaintiff’s genuine attitude towards life and his responsibilities.
Conclusion
120 I am satisfied that the plaintiff suffers the aforementioned consequences as a result of the injury to his lower back and such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked and as being at least very considerable”. I consider that the consequences as described are for the foreseeable future, in the sense that they are permanent.
Loss of earning capacity
121 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
122 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.
123 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a 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.
124 The parties agreed that the “without injury” loss at 60 per cent was $774.00 gross per week.[89] In short, if the plaintiff had a capacity to earn a sum greater than $774.00 gross per week, then he has failed to satisfy the “after injury” loss of earning capacity.
[89]T143
125 The plaintiff has not worked since his retrenchment in March of 2010. The plaintiff is currently certified by his general practitioner, Dr Jigau, to have no work capacity.[90]
[90]Exhibit D
126 The plaintiff was challenged about not being motivated to work. I have previously referred to his response to such challenges in these reasons. I find that the plaintiff, by way of history in his personal life and his work history, that he is someone who would always be motivated to work.
127 The medical evidence in this case at its highest states that the plaintiff would be capable of doing alternative light duties up to 20 hours per week. In his evidence, Mr Brownbill slightly altered his opinion in that regard and stated that the plaintiff could “attempt” to do 20 hours of light duties. As I understood Mr Brownbill’s evidence, it would be a ‘wait and see’ and assess how the plaintiff tolerated light duty employment.
128 I have previously summarised the conclusions and opinions of the other medical practitioners in this case. In particular, I do not accept Professor Brazenor’s opinion that the plaintiff is capable of returning to full-time alternative duties.
129 I accept the evidence of Ms Schneider, which has been tested by cross-examination, that, in her opinion, the plaintiff is unable to obtain alternative employment due to the injury to his lower back. Ms Schneider had made extensive and intensive enquiries of likely employment opportunities for the plaintiff given his accepted medical symptoms. Ms Schneider did not make any diagnosis of the symptoms or condition of the plaintiff’s lower back. She accepted the medical opinions of the doctors referred to in her report which was exhibited in this trial. I accept Ms Schneider’s expertise in the placement of the plaintiff in suitable employment given his physical disabilities.
130 I conclude, on the basis of the medical evidence of Mr Brownbill, which has been tested in cross-examination, and Ms Schneider, which has been tested in cross-examination, that the plaintiff now has no employment capacity in a suitable employment. The reason for this is his low-back injury. I accept that this position, unfortunately for the plaintiff, is now permanent, in the sense that it is for the foreseeable future. In summary, the plaintiff has a nil “after injury” earning capacity.
131 Despite the finding that the plaintiff has a nil working capacity, I further find that even if the plaintiff was able to satisfactorily attempt to work 20 hours per week in a light duties occupation, the plaintiff would still fail to earn more than $774.00 gross per week. The median full-time weekly earnings for all occupations is $1,100.00 gross per week.[91] The gross weekly earnings for couriers and postal delivery people is a gross of $900 per week full-time earnings.[92]
[91]DCB 79
[92]DCB 81
132 The mathematical calculation would be as follows:
$1,110.00 x 20 hours = $584.21
38 hours
133 The gross average weekly earnings of $584.21 is less than 60 per cent of the “without injury” earnings.
134 Clearly, on this calculation, the plaintiff, if he was able to work 20 hours alternative duties, fails to earn more than the sum of $774.00 gross per week. In short, based on the figures and submissions of the defendant, the plaintiff still fails to achieve the 60 per cent of “without injury” earnings.
135 In respect of the plaintiff’s loss of earning capacity, based on the reasons outlined above, I find the plaintiff has a nil capacity for returning to paid employment. I find that as a result of his low-back injury, that his capacity to engage in employment either as pre-injury employment or alternative duties, is permanent, in the sense that it is for the foreseeable future.
136 I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of loss of earning capacity and pain and suffering damages.
137 I will hear the parties on costs.
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