Res v Victorian WorkCover Authority
[2015] VCC 1181
•9 September 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03146
| SALES RES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 August 2015 | |
DATE OF JUDGMENT: | 9 September 2015 | |
CASE MAY BE CITED AS: | Res v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1181 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Grech v Orica Australia Pty Ltd& Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Maurice Blackburn |
| For the Defendant | Mr J Gorton QC with Ms J Frederico | Wisewould Mahony |
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 Always Powder Coating Pty Ltd (“the employer”) on 17 March 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded.
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 injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the lumbar spine.
5 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.
6 By s134AB(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.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
13The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
14 The plaintiff is presently aged fifty-five, having been born in June 1960 in Cambodia.
15 The plaintiff completed school to age sixteen, the latter years of schooling being interrupted by civil unrest. He spent some time in a Thai refugee camp from 1981 and migrated to New Zealand in 1983.
16 Whilst in New Zealand, the plaintiff did factory work and also some spray painting. He worked as a taxi driver for about three years.
17 The plaintiff migrated to Australia in August 2007. He commenced full-time employment with the employer that month as a spray painter and a powder coater.
18 Whilst lifting a box of powder coating compound on the said date, the plaintiff felt a sudden onset of lower back pain (“the incident”).
19 The plaintiff was not too concerned initially and he was able to work out the remainder of his shift, although he did so in pain. However, the pain did not settle down. It was mainly concentrated on the right side of the plaintiff’s lower back and he started to feel an electric shock-type pain down his right leg.
20 The plaintiff attended his general practitioner, Dr Hancock, the day after the incident and was referred for investigations. He was given some time off work and also treated with painkillers and physiotherapy.
21 After only a few days off work, on 24 March 2008, the plaintiff returned to work as he was concerned about losing his job. He disagreed that he went back to work because he was a lot better; he had to get back to work.[3]
[3]Transcript “T” 17
22 The plaintiff was given modified light duties by Basic Solutions, the company which took over from the employer. That company knew the plaintiff had a sore back. He was not expected to lift heavy boxes of powder coating compound which weighed 20 to 25 kilograms. Someone else did it for him.[4] However, all workers were still expected to pull their weight. That was difficult for the plaintiff because of his daily significant back and leg pain.
[4]T19
23 The plaintiff started work at 7.45am and finished by 3.30pm. He agreed he was required to regularly lift weights of up to 5 kilograms. That meant a fair bit of bending and most of the day standing.[5]
[5]T19
24 The plaintiff was not really lifting cans of paint, he was lifting small metal shelf parts weighing less than 5 kilograms. He sprayed the parts and sometimes hung them up.[6]
[6]T20
25 The plaintiff agreed with vocational assessor Katrine Green’s description that in the four years of light duties, he was restricted to lifting not more than 5 kilograms and he had to regularly lift small amounts of powder regularly. He agreed his work involved using his upper limbs, standing for a long time. There was more bending, because he was dealing with 5-kilogram rather than 20-kilogram boxes.[7]
[7]T21
26 The plaintiff agreed he was expected to be a productive worker. He worked full time. Overtime was very rare and sometimes for an hour and involved light duties, not spray painting. He did hardly any bending in the wrong position. He would squat and bend his knees to pick things up.[8]
[8]T22
27 The plaintiff agreed he was a reliable worker. He only took a day off when the pain became really severe. He could not take more time off because he had to support his family.
28 The plaintiff’s level of pain built up during the day at work and he very much needed to rest at home in order to be able to cope when back at work. He took painkillers and had physiotherapy when the pain was particularly bad. He continued to struggle with a lot of worsening pain, and he eventually ceased work with Basic Solutions when he was made redundant in February 2012.
29 The plaintiff’s manager at Basic Solutions told him about a job at A Class – another powder coating company.[9] If he had not been made redundant, the plaintiff would have continued with Basic Solutions. He might still be working there, but if the pain is severe, like now, he did not think he would want to do that.[10]
[9]T26
[10]T27
30 The plaintiff commenced work at A Class on 6 February 2012. He worked with some pain in that job because he needed the money. He did overtime once in a while. He got to work every day on time, but sometimes he did not reach his targets.[11]
[11]T28
31 The job at A Class was a very light one and the plaintiff did not have to do any lifting. However, he continued to have ongoing back and leg symptoms. By October 2012, he was not able to continue in that job because of his back pain, and standing caused him problems in his back and legs. Every day work made his back play up.[12]
[12]T30
32 The plaintiff saw his doctor after he had stopped working at A Class. Dr Hancock then certified him unfit for work. The plaintiff did not see him earlier because he had enough medication from that doctor.[13]
[13]T32
33 After ceasing work at A Class, the plaintiff worked very briefly for Advanced Sprayers Pty Ltd as a powder coater for about three weeks. The plaintiff had been certified unfit for all work by Dr Hancock but he still obtained this job because he did not have enough money to survive and he needed money to live.
34 The plaintiff thought he would be up to this job after resting at home but, unfortunately, he could not continue, as his pain increased.
35 Initially at Advanced, the plaintiff was not required to do any heavy lifting. However he was later required to lift 20-25kg containers of powder. He could not cope and had to cease working.[14]
[14]T29
36 The plaintiff ceased work, realising he was unable to continue doing powder coating work even if it was very light. He has been unable to return to any work at all since November 2012.
37 The plaintiff agreed that ultimately, he left Advanced because he had to do the heavy lifting but there was always pain; it was becoming severe and he did not think he would have been able to continue with the work. He stopped because of his lower back pain and his every day work which caused his back to play up.[15]
[15]T30
38 The plaintiff had CT scan of the lumbar spine in October 2012.
39 When he swore his first affidavit in February 2014, the plaintiff’s back condition was not improving. There was constant pain, concentrated in the right side of his lower back, and also down his right leg. There was also occasional numbness and sometimes a cold sensation in the right leg.
40 Bending and twisting from the lower back were particularly painful and caused a sharp and stabbing-type pain. Coughing or sneezing would also bring on back pain.
41 The plaintiff had to try and be conscious of his back at all times and guard against movements he knew would cause pain. That, of course, was not always possible, and he flared up his back and leg pain a number of times every day, sometimes for no obvious reason.
42 The plaintiff’s pain interfered with his sleep. He found it hard to get to sleep and was usually woken a couple of times at night in pain. He rarely had a full uninterrupted night’s sleep.
43 The plaintiff then relied on painkillers, usually six Panadol every day, and he alternated between Mobic and Celebrex for stronger pain. He took either two Mobic or two Celebrex most days. He found tablets could help with the harshest pain, but not always.
44 The plaintiff did not have any ongoing treatment apart from visiting Dr Hancock monthly. He wanted some physiotherapy, but could not afford it.
45 The plaintiff was then very worried about the future and the type of work he could do. However, it seemed clear he no longer had the ability to carry out physically based or manual employment, nor did he have the skills or language skills to work in an office environment. That situation had placed he and his wife under extreme financial pressure, as he was not eligible for Centrelink due to his New Zealand citizenship.
46 The plaintiff’s English is usually good enough to get him by from day to day, but he needs assistance with more complicated documents, such as the affidavits. He speaks Khmer at home.
47 The plaintiff confirmed that on all medical examinations and interviews he had spoken English. He agreed his English was good enough for day to day living. He had some difficulty communicating with his general practitioner but he understood some of what he said.[16]
[16]T16
48 The plaintiff’s English was good enough to cope at his work because he just stood there and spray painted what he was told to. As a taxi driver, he just had simple commands and he could follow them.[17]
[17]T16
49 In his supplementary affidavit sworn in August 2015, the plaintiff described back and leg pain and taking medication whilst working on modified duties for the employer. He persisted with work, as he had rent to pay. Post-incident work did not require heavy lifting or bending.
50 The plaintiff continues to suffer from ongoing pain in his back and legs. He is never pain free. The pain varies, and is made worse by cold weather and by bending, lifting or twisting. It also worsens if he sits or stands for too long.
51 The plaintiff’s back pain varies during the day and he needs to lie down several times a day for about half an hour on the floor to try and alleviate it.
52 Maybe once years ago, the plaintiff told Dr Hancock he got a sore back and slept on the floor.[18] The plaintiff did not mention having to lie down several times a day in his first affidavit because he did not know he had to tell his lawyer about it, he never thought about it at that time.[19] The plaintiff may not have told other people about having to lie down because they did not ask him.
[18]T33
[19]T34
53 When he was working, as soon as he arrived home from work, the plaintiff would stretch his back and lie down.[20]
[20]T35
54 The plaintiff takes Mobic and Celebrex daily, about fourteen tablets a week. He also takes Panadol. He regularly obtains medication from Dr Hancock who sometimes gets manufacturer’s samples for the plaintiff because he otherwise cannot afford to pay for them.[21]
[21]T32; Mobic prescribed 29 April 2013 and 29 May 2104, Celebrex prescribed 6 January 2015
55 The plaintiff takes what he is prescribed, taking either Mobic or Celebrex once daily, but not at the same time.[22]
[22]T37
56 The plaintiff agreed that in the last two and a quarter years, there might have only been three prescriptions in total of those medications. However, each month, Dr Hancock gave him samples which he takes once a day.[23] Sometimes, the plaintiff does take more than one tablet a day, when the pain is severe.[24]
[23]T38
[24]T39
57 The plaintiff had some Medicare funded physiotherapy last year.
58 The plaintiff’s sleep continues to be disrupted due to back and leg pain and he is often tired during the day as a result.
59 The plaintiff has had a number of meetings with Nabenet, who have discussed return to work possibilities. He attended a short English course earlier this year at Noble Park Community Centre. During that course, he was allowed to sit or stand but he had difficulty, as it caused his back pain to increase. He did not continue with the course because he could not afford the cost of transport to the course.
60 The plaintiff’s WorkCover payments ceased in about March this year. He is not entitled to Centrelink. He does not have any money and he is living on his savings. He and his wife rent a room in a shared house. She does not work and they are in a very dire financial position.
61 The plaintiff initially agreed he received $70,000 in 2014/5 financial year for back pay of weekly payments and he uses that money for day to day living. He then denied having received that sum. He has no other income at all.[25]
[25]T54; taxation return 2014-205 $75,098 taxable income (CGU 11.7.41-16.3.15 $23,381 and $51,717 superannuation)
62 The plaintiff does not believe he could currently work. The only work he has every really done is spray painting and he could no longer do this because of his back pain.
63 The plaintiff cannot operate a computer and does not own one. He has never done office or clerical work and his ability to read and write English is limited.
64 If he did not have back pain, the plaintiff is keen to get back to work. He had not applied for any work since late 2012 because of his pain.
65 The plaintiff did not know, if he was offered a job doing bench work, where he was able to sit and stand throughout the day, if he would be able to do it.
66 The plaintiff did not think he could do a job where he could change posture and there were lifting restrictions, because if he got up and he was not balancing himself properly, he might fall. He needs time to walk to get his back “released” and standing and sitting for too long increases his back pain.[26]
[26]T49
67 If the “work structure” gave the plaintiff space to walk or go to the toilet or move around, “everything that was open” to him, maybe he could work. If the job was flexible and made him feel comfortable and he did not have to do heavy weights, he might be able to do it but he would have problems with work targets.[27] He agreed he could turn up and he would try but he would not be able to do things on demand.
[27]T50
68 Further, the plaintiff did not think he could attend work because of his restless nights and sleep problems. He would try, but he feels so fatigued after a restless night.[28]
[28]T51
69 The plaintiff’s ability to do the tasks involved in the Recovre packer job-folding pieces of paper, working with envelopes, putting them in a plastic bag and sealing them and then putting them in tubs- would vary because of his back pain.
70 The plaintiff’s back pain is now more severe than when he worked on light duties for four years after the incident. However, he agreed whilst working he had not been prescribed heavier painkillers than he now takes. [29]
[29]T53
71 The plaintiff has never tried to get a job because of his severe back pain. He was worried about the pace of work and how he would keep up with other workers at the factory. He knows what happens in a factory and he was worried that he would be criticised by team leaders for not being able to keep up. [30]
[30]T53
72 If given a job such as that suggested by Recovre, the plaintiff could not guarantee he could do it 100 per cent. If he was in pain, he would just stop. He does not know if he could cope because of his back pain.[31]
[31]T54
73 The plaintiff has not done work other than powder coating, save for taxi driving. His back pain would not allow him to attend a factory every day at 8am. It would be very painful if he had to be at a factory all day.[32]
[32]T56
74 The plaintiff gets up at about 5.30am daily. He spends most of his time at home watching television and pacing around. He lies down around the house. He sleeps on the floor when his back plays up.[33]
[33]T33
75 In the witness box, the plaintiff was asked to show how far he could bend from the waist. He did not think he could lean forward any further than 10 degrees, as he demonstrated. If he did so, his back would start to play up and he would have to stop and rest. He could not bend repeatedly.[34]
[34]T41
Surveillance
76 There were three short surveillance films. The first on 3 April and 15 April 2014, showed the plaintiff getting slowly into his car. The second on 2 and 4 March 2015 was not shown.
77 On 1 August this year, the plaintiff was shown on the footpath outside his home bending, holding his knees, looking at the passenger wheel of a vehicle and then walking to the other side of the vehicle and performing a similar movement, bending looking at the driver’s side.
78 The plaintiff agreed that it was a reasonably straightforward comfortable manoeuvre and that he had his hands on his knees or upper thighs and had bent down twice. He was bending with his hands on his knees as he was trying to hold his body. His bending was very limited.[35]
[35]T47
Treatment
79 Dr Hancock first saw the plaintiff with low back pain on 18 March 2008.
80 In May 2009, Dr Hancock noted that the plaintiff had continued to struggle with his lumbar disc injury, continuing to work on modified duties with restricted lifted and bending and continuing to be troubled by pain.
81 Dr Hancock referred the plaintiff for physiotherapy in May 2010. There was a further referral for physiotherapy in April 2012. Dr Hancock then noted the plaintiff continued to work on modified duties but had a recent exacerbation in colder weather.
82 In his February 2013 report, Dr Hancock noted that the plaintiff was eager to work after a few days off after the incident and that he returned to work on modified duties. The plaintiff appeared to manage, albeit with some difficulty, and persisting lower back pain and right sciatica. He worked full time on modified duties, with restricted lifting and bending reasonably well, except for periodic exacerbation of back pain requiring a few days off work. That situation continued for four and a half years. There was then a more severe exacerbation of back pain in September 2009, which required two weeks off.
83 In October 2012, the plaintiff described gradual onset of more severe low back pain and worsening sciatica. He was unable to continue with his work duties after 10 October 2012. Dr Hancock noted the plaintiff had a short trial of work in another place in November 2012 but he was unable to continue because of back pain.
84 Dr Hancock diagnosed a lumbar disc injury with L4-5 disc protrusion to which work had been a significant contributing factor. He thought specialist orthopaedic opinion was required.
85 Dr Hancock thought there had been a restricted work capacity from March 2008 to October 2012 and no work capacity since October 2012. In his view, the longer term prognosis was then uncertain.
86 Dr Hancock recently reported in August 2015. He then confirmed the plaintiff had continued to have physiotherapy, anti-inflammatory and analgesic medication. The plaintiff suffered from persistent lower back pain and sciatica, incapacitating him from manual activity, and that condition had impacted negatively on the plaintiff’s mood, although he did not suffer from Clinical Depression.
87 Dr Hancock confirmed his earlier diagnosis and thought the disc injury had been complicated by chronic pain, incapacity, anxiety and financial stress. He confirmed his view as to the plaintiff’s work capacity and thought, in terms of the future, capacity was likely to be limited and the prognosis, as far as return to work, was not very good. He thought the injury would not recover and since vertebral disc injury was partly degenerative in nature, it was likely to further deteriorate with time, as it had done in the last seven years.
88 Dr Hancock considered the plaintiff had no capacity at all for manual work due to his injury and pain. He noted that the plaintiff is of Cambodian background, aged fifty five and English is not his first language. Dr Hancock thought the plaintiff’s education, training, work history and experience, combined with limitations in English, did not fit in very well for retraining or transferring skills to employment not involving manual work. In his view, the plaintiff has no work capacity now and will not regain such; that is, he is totally and permanently incapacitated.
89 Dr Hancock’s medical records set out ongoing reports by the plaintiff of problems carrying out modified duties leading up to ceasing employment in October 2012. There were supporting certificates during that time setting out Dr Hancock’s view as to the plaintiff’s level of capacity for modified duties.
90 Physiotherapy was initially received from Raymond Lee in Scoresby, commencing in May 2008 until August 2008, when the plaintiff moved. There was also physiotherapy from Chandler Road Physiotherapy in 2009 from Michael Melamed.
91 In 2012, Mr Melamed thought the plaintiff had chronic discogenic lumbar pain and required further treatment.
92 As of May 2013, Mr Melamed thought the plaintiff had a capacity for work but with modified duties. He considered the plaintiff was not allowed to lift above 5 to 10 kilograms and should not be sitting or standing for any longer than 30 to 60 minutes at one time, and he needed regular breaks.
93 Mr Melamed thought the plaintiff had chronic discogenic lumbar pain and required ongoing pain relief and would benefit from supervised exercise.
94 In March 2015, Mr Melamed confirmed the work restrictions he had earlier suggested, noting the plaintiff contacted him again in October 2014 requesting further approval from CGU for funding for treatment. A further five sessions were provided, together with five sessions funded by Medicare. He noted there had however been no change in the plaintiff’s condition over the last few years and he was still complaining of chronic lower back pain.
Medico-legal evidence
95 Professor Bittar, neurosurgeon, examined the plaintiff on 20 July 2015.
96 The plaintiff then complained of constant lower back pain radiating through both buttocks down his legs, radiating predominantly down the back of his right leg. His back and leg pain had an average severity of seven to eight out of ten. He had numbness and pain and tingling, particularly at the lateral aspect of the right calf. Symptoms were exacerbated by sitting or standing more than 30 minutes, bending, twisting and lifting more than a few kilograms.
97 On examination, there was a severe restriction of lumbar flexion and a mild restriction of extension, flexion being slightly more painful. The plaintiff had bilateral lumbar paravertebral muscle spasm and guarding, mainly over the mid and lower lumbar region.
98 Professor Bittar thought the plaintiff presented with a work related aggravation of lumbar spondylosis and he also suffered from an L4-5 disc prolapse.
99 Professor Bittar thought the plaintiff was permanently incapacitated for his pre-injury duties as a result of his work-related lumbar spine condition. Taking into account the plaintiff’s age, education, training and skills and very limited English, together with the nature and severity of his work-related lumbar spine condition, Professor Bittar thought the plaintiff had no realistic capacity for alternate duties.
100 Associate Professor Bittar considered the plaintiff had no realistic capacity to work in a restricted capacity in a reliable and sustained manner and for a sustained period.
Vocational evidence
101 Ms Kaye Angel from Flexi Personnel reported in June 2015 addressing the plaintiff’s work capacity for his pre injury employment or alternative employment.
102 In Ms Angel’s view, taking into account the medical reports, speaking to the plaintiff and from a recruitment perspective, she believed his injury, pain and restrictions would be an ongoing major obstacle for him in efficiently performing even alternative employment to an acceptable industry standard.
103 In her opinion as a recruiter, even work of the lightest kind required punctuality, regular attendance and a consistent capacity to productively fulfil any position. In the plaintiff’s current state, taking into account his medical condition and his presentation, Ms Angel doubted the plaintiff could proficiently meet those criteria on an ongoing consistent basis.
104 Ms Angel thought the plaintiff was very limited in his work-ready transferrable skills and that he was not currently capable of performing unrestricted duties to an acceptable industry standard. However, if he successfully found a benevolent employer prepared to allow him to try to return to work, retrain and provide him with suitable duties with allowances for his restrictions, the plaintiff could possibly earn $17.35 an hour doing hand-packer process work. She thought, given his physical restrictions, the plaintiff would not currently be sellable to a new employer.
105 Whilst noting the physiotherapist and Dr Mutton thought that the plaintiff might, theoretically, have some capacity to work within restrictions, due to his back and leg pain and physical restrictions, as a recruiter Ms Angel doubted it would be at a level that would normally make him an attractive option for an employer to hire him for even light bench type factory duties or light office work.
106 Ms Katrine Green, human resources consultant, carried out a vocational assessment report in July 2015, having interviewed the plaintiff.
107 Ms Green considered the plaintiff would not be suitable for work as a spray painter, taxi driver, delivery driver, factory process worker, hand packer, general labourer and store person/warehouse assistant, based on the core duties and the physical demands of the work and taking into account his current physical tolerances, restrictions and work experience.
108 Ms Green concluded that, due to his lower back injury and current physical capacity, the plaintiff was not able to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future.
The Defendant’s medico-legal evidence
109 The plaintiff was examined on a number of occasions by Dr Philip Mutton, occupational physician. He first saw the plaintiff in July 2008, again in April 2014 and most recently in March 2015. He also provided a supplementary report, having received the 2015 Recovre report.
110 On examination in March this year, the plaintiff reported current symptoms were pain in the lower back and some pain into the right lateral thigh. There was some fairly constant pain in the left lower limb into the lateral shin, but not the foot.
111 The plaintiff was tender from L1 through to the coccyx. There was some palpable paravertebral muscle spasm left and right. There was restricted flexion, and there was altered sensation throughout the whole of the left lower limb, not meeting any dermatome peripheral nerve distribution. Reflexes were brisk at the ankle jerk and knee jerk. Straight leg raising to the left was sixty degrees and to the right, eighty degrees, and the plaintiff walked with a gait disturbance.
112 Dr Mutton had the lumbar CT scan of October 2012.
113 Noting reports from the physiotherapist and the general practitioner, Dr Mutton commented there appeared some confusion in relation to whether the plaintiff’s symptoms were primarily left or right sided. When quizzed, the plaintiff insisted whereas he initially had low back pain and right lower leg symptoms, the right did improve and, ultimately, it was the left that became more symptomatic after six or seven months from the original injury.
114 Based on his presentation, Dr Mutton thought the plaintiff had a current capacity for full employment of an appropriate type. Dr Mutton noted the scan did identify some mild pathology at L4-5 and that may result in some lower back pain and needed to be protected.
115 Dr Mutton considered the plaintiff primarily suffered from low back pain with movement of the lower back. Due to that condition, he would be advised not to lift excessive weights and, due to his small build, a weight limitation of seven and a half kilograms would be appropriate. He should also avoid bending at the waist and flexing and rotating the lower back. He should avoid back bending activities of more than once or twice an hour.
116 Dr Mutton would expect the plaintiff would be able to work on a fulltime basis in appropriate employment. He considered if he had the ability to sit and stand and interchange and avoid lifting more than 5 to 7.5 kilograms, the plaintiff should be able to work full time.
117 Dr Mutton thought the plaintiff would be able to undertake unskilled work such as packing, container filling work, light assembly work. In those jobs, he would be able to sit and stand and interchange and he would not require significant training.
118 Dr Mutton thought the plaintiff should avoid occupations where he is required to sit without the ability to change posture for prolonged periods of time and, therefore, professional driving activities should be avoided, noting the plaintiff had previously worked as a taxi driver. He thought the plaintiff should also avoid standing for prolonged periods and he would need to have the capacity to sit and stand and interchange. Dr Mutton thought the jobs identified did not require specific training other than on the job training and that should not be a barrier to the plaintiff.
119 Dr Mutton noted that the handline packer job suggested by Recovre fell within the restrictions he had previously identified. He suggested it constituted suitable employment on a fulltime basis.
120 Dr Mutton disagreed with aspects of Ms Green’s assessment and pointed out he had been involved in occupational medicine for in excess of thirty five years and had visited a large number of work places and had a good understanding of work requirements. He had no reason to change his opinion, having seen her report and also Kaye Angels’ report.
121 Dr Baynes, occupational physician, examined the plaintiff in November 2013.
122 On examination, there was restricted lumbar movement and bilateral straight leg raising was to forty degrees. There was altered sensation affecting the right lateral calf and foot, however muscle power was normal. There was tenderness to palpation over L4 to S1 and over the right facet joint. The plaintiff could sit with his legs extended to ninety degrees without apparent discomfort.
123 Dr Baynes noted the 2008 and 2012 lumbar CT scans.
124 Dr Baynes thought the plaintiff was suffering from a chronic pain syndrome associated with chronic lower back pain with referred pain to the right leg. He noted no evidence of radiculopathy, and there was some evidence of abnormal illness behaviour. He thought the ongoing back pain was associated with disc degenerative pain coming from L4-5. He recommended self-managed home-based exercise and that an MRI scan might be of benefit to pathology.
125 Dr Baynes did not think the injury had resolved and noted the CT scan showed progression at L4-5 with no new pathology. He did not think it reasonable for the plaintiff to have physiotherapy and hands on treatment was not appropriate, but the plaintiff could have three or four sessions to emphasise an updated exercise program.
126 Dr Baynes thought the plaintiff had a capacity for alternative duties related to reasonable postural tolerance and activity.
127 Dr Malcolm Brown, occupational physician, examined the plaintiff in October 2014.
128 The plaintiff then complained of tenderness on palpation of the lower back. There was some limitation of movement and varied straight leg raising when sitting and lying. Muscle power and reflexes were normal.
129 Dr Brown thought the plaintiff had chronic back pain with radiological evidence of disc pathology in the past. Dr Brown thought there were likely to be constitutional elements present, but bending at work had been a significant contributing factor and was still materially contributing.
130 Dr Brown considered the plaintiff had a current work capacity but not for pre injury duties. His capacity was for work not involving constant standing, frequent bending and heavy lifting. His work capacity was unlikely to change significantly in the future.
131 Having been provided with the October 2014 vocational report, Dr Brown thought the plaintiff had the capacity to do assembly and packing tasks in factories, provided he was able to sit or stand at will. He did not have the capacity to do those jobs constantly standing. He had the capacity to do quality control work and work as a car park attendant without specific restriction. He had the capacity to work as a stationary plant operator, provided there was capacity to sit or stand, and he was not required to maintain fixed positions. The plaintiff had the capacity to undertake any of the suggested work within the restrictions above. He was not incapacitated for all employment.
132 Mr Jones, orthopaedic surgeon, examined the plaintiff in April 2015.
133 The plaintiff then described symptoms of constant pain in his lower back with restricted movement. In addition, he described some pain extending down his back of his right thigh to include his calf. Leg symptoms were only noticeable if the back was extremely painful and occasionally, there was a numb feeling in the right calf and he felt his right foot was not strong.
134 On examination, there was some restriction of lumbar movement. Lower reflexes were present and equal. There was some subjective paraesthesia over the lateral aspect of the right calf. Straight leg raising to the left was eighty degrees and to the right fifty. Mr Jones thought the latter appeared to aggravate the plaintiff’s back pain rather than suggesting any convincing evidence of sciatica.
135 Mr Jones noted the 2008 x-ray and the 2012 CT scan.
136 Mr Jones thought the plaintiff suffered an L4-5 disc disruption manifesting principally as back pain with occasional referred pain into his right leg. There was some clinical suggestion that he may be suffering from right sided sciatica. He thought there were no functional symptoms or signs in the plaintiff’s presentation and was unable to comment on any adverse psychological reactions suffered by him.
Vocational evidence
137 Janette Ash, Occupational therapist from Recovre provided a suitable employment in May 2015.
138 Ms Ash was provided with reports from Mr Jones and Dr Mutton. She did not interview the plaintiff.
139 Having attended the worksite on a number of occasions, Ms Ash recommended that the job of packer with a print marketing distribution business in Noble Park was both vocationally and physically suitable for the plaintiff.
140 The job involved envelope stuffing, bag stuffing and sealing, stapling, envelope gluing and other sundry tasks. Ms Ash noted this job complied with restrictions relating to standing, avoiding frequent bending and heavy lifting (maximum 7.5-kilogram tubs) with bench work with light upper limb activities.
Overview
141 Pain and suffering having been conceded, the issue for determination is limited to whether the plaintiff has a permanent loss of earning capacity of 40 per cent as at the date of hearing.
Credit
142 There was a very limited attack on the plaintiff’s credit on the basis that he first mentioned having to lie down several times a day because of back pain in his second affidavit, not mentioning it in his first affidavit in various histories to doctors. However, in his first affidavit, the plaintiff mentioned having to rest at home after work so he could be able to attend work the following day.
143 I accept that the plaintiff was a truthful, credible witness, who did not exaggerate the extent of his symptoms.[36]
[36]T72
144 In my view, the plaintiff is somewhat of a stoic, having continued working for over four years post-incident with increasing back pain until the end of 2012 when he could no longer cope.
145 Whilst there was surveillance film, it did not show any level of activity inconsistent with the plaintiff’s reported level of symptoms and restrictions and at times, showed the plaintiff to move slowly. The movement shown was limited to the plaintiff bending with his hands on his knees looking at the wheels of a motor vehicle – a very limited level of lumbar movement.
146 Obviously, there is no suggestion by any medical examiners of any exaggeration or embellishment by the plaintiff on examination.
147 The plaintiff clearly suffers consequences that meet the statutory definition of “pain and suffering”.
148 Essentially, there are two competing views as to the plaintiff’s present work capacity, with the concession having been made that the plaintiff has a light work back and is unfit for pre injury employment.[37]
[37]T64
149 The plaintiff’s general practitioner, who finds support from Professor Bittar, considers the plaintiff does not have a capacity for suitable employment.
150 The contrary view is held by occupational physicians, Dr Mutton and Dr Brown, who both consider the plaintiff, whilst unfit for pre-injury employment, has a capacity for full-time light work, with bending and lifting restrictions and also the ability to change his posture at will.
151 One particular job as a hand packer, has been suggested by Recovre as suitable for the plaintiff and has been endorsed by Dr Mutton.
152 Vocational assessors Katrine Green and Ms Angel, relied on by the plaintiff, concluded he does not have a capacity for suitable employment.
153 Counsel for the defendant was critical of the medical opinions that Mr Green purported to give[38] and it was submitted that some of her conclusions were not based on any evidentiary basis.[39] Further, Ms Green took into account the availability of work which is not a relevant consideration.[40]
[38]T61
[39]T62
[40]T63
154 I accept the validity of the criticisms of Ms Green’s opinion and give limited weight to her conclusions and only insofar as they are made within her area of expertise.
155 Counsel for the defendant suggested that the plaintiff ceased work as a powder coater because of the very heavy lifting involved in his job with Advanced, although it was conceded he had earlier complained of problems with prolonged standing.[41] It was submitted lifting 25 kilograms was not something the plaintiff should be doing and he was quite right not to do it, but he had the capacity to do jobs not involving that level of lifting.[42] Counsel for the defendant stressed that the plaintiff might have been able to continue with his last job if not for the heavy lifting involved.[43]
[41]T65
[42]T66
[43]T77
156 However, the plaintiff was having problems at work beyond the heavy lifting. He left A Class because of difficulties with prolonged standing. As he explained, it was becoming increasingly apparent that he could not do even light work as a powder coater. Everyday duties were causing him difficulty. It was not just a problem with heavy lifting.[44]
[44]T73
157 I accept the plaintiff cannot work because of ongoing back and leg pain requiring daily medication, problems with prolonged standing and sitting, difficulty sleeping causing fatigue the following day and significant problems with physical tasks involving bending and lifting.
158 Whilst it was submitted this is not a case with classic sciatica or radiculopathy, where there would be significant physical restrictions,[45] serious injury has been conceded as has the fact the plaintiff has no capacity for his pre injury work. Further, Mr Jones thought on recent examination that there was some clinical suggestion the plaintiff may be suffering from right sided sciatica.
[45]T66
159 By conceding pain and suffering, clearly the defendant has accepted there are serious consequences of the plaintiff’s spinal impairment in terms of his pain and restrictions generally.[46] In those circumstances, a submission that there would be more significant medication if the plaintiff was so bad is not overly strong.
[46]T76
160 In my view, given the plaintiff’s pre injury work history and his attempts to continue in the workforce thereafter, he would be working if he had the physical capacity to do so.
161 Dr Hancock is an important witness in relation to this issue having treated the plaintiff on a regular, ongoing basis since injury. [47] Dr Hancock initially certified the plaintiff as fit for restricted duties until his condition deteriorated in October 2012, and has certified him unfit for all work since.[48] Professor Bittar shares his view that the plaintiff does not have a capacity for suitable employment.
[47]T45
[48]T75
162 Counsel for the defendant relied upon the comments of the Court of Appeal in Giankos v SPC Ardmona Operations Ltd,[49] about the desirability of obtaining reports from specialist occupational physicians’ opinions as to the type of work an injured worker can perform.[50]
[49][2011] VSCA 12
[50](supra) at paragraph 96
163 On this basis, it was submitted the views of Dr Mutton and Dr Brown should be preferred, namely that the plaintiff had a capacity for full-time moderate work.[51]
[51]T67
164 It was submitted that the plaintiff failed in this application, even in the absence of the Recovre report, which was the “icing on the cake.” It was submitted the defendant had done as thorough and detailed a job as one could imagine to identify an actual job to discharge the evidentiary onus described by the Court of Appeal in Giankos.[52]
[52]T68, Giankos (supra) at paragraph 115
165 Further, it was submitted, unlike the vocational assessor involved in Giankos, Ms Ash in this case, went out and reviewed the worksite on multiple occasions.[53]
[53]T71
166 However, as counsel for the plaintiff pointed out, Recovre had only been given reports from Mr Jones and Dr Mutton, not the treating general practitioner, who thought the plaintiff has no capacity for suitable employment. Further, Ms Ash had not interviewed the plaintiff.
167 In Grech v Orica Australia Pty Ltd & Anor,[54] Ashley JA stated that the matters the plaintiff needed to establish were to be resolved upon all the evidence before the court. It was not a trial by doctors’ opinions, nor a trial in which relevant medical questions were to be decided on the footing. In effect, that medical opinion did not of itself provide answers to those questions.
[54](2006) 14 VR 602 at paragraph [35], confirmed in Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraph [17]
168 Counsel for the plaintiff submitted there was no requirement for an occupational physician because the plaintiff’s case was quite clearly put on the basis of him having no work capacity.[55]
[55]T72
169 Accepting the plaintiff’s evidence and also the view of Dr Hancock, supported by Professor Bittar, I accept the plaintiff does not have a capacity for suitable employment due to his persisting back and leg pain.
Loss of earning capacity
170 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).
171 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.
172 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
173 “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.
174 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.
175 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.
176 I am therefore required to determine a “without injury” earnings figure-see Barwon Spinners Pty Ltd & Ors v Podolak.[56]
[56](2005) 14 VR 622 at paragraph [70]
177 The plaintiff’s employment as a spray painter resulted in modest earnings ranging from the low $30,000s in 2008 and 2009 to the mid $30,000s in June 2010 and 2011. In those circumstances, an appropriate without earnings figure is $35,000. Sixty per cent thereof is $21,000 or about $400 per week.
178 I am satisfied the plaintiff does not have the capacity to work in any restricted capacity, including the job suggested by Recovre. In those circumstances, he has suffered the requisite loss of 40 per cent.
179 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
180 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
181 I am satisfied that the requisite loss of 40 per cent is permanent.
182 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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