Robertson v KML Sheet Metal and Air Conditioning Pty Ltd
[2014] VCC 780
•2 June 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03491
| ASHLEY NATHAN ROBERTSON | Plaintiff |
| v | |
| KML SHEET METAL & AIR CONDITIONING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 10 and 11 April 2014 | |
DATE OF JUDGMENT: | 2 June 2014 | |
CASE MAY BE CITED AS: | Robertson v KML Sheet Metal & Air Conditioning Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 780 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ansett Australia Ltd v Taylor [2006] VSCA 171; Stijepic v One Force Group Aust Pty Ltd (2009) VSCA 181
Judgment:Leave granted to bring proceedings for damages for pain and suffering. Application for leave to bring proceedings for loss of earning capacity dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Nevin Lenne Gross |
| For the Defendant | Ms K Galpin with Mr R Stanley | Wisewould Mahony Lawyers |
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 during the course of his employment with the defendant on 9 June 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 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
15 The plaintiff relied upon two affidavits and gave viva voce evidence. 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
16 The plaintiff is presently aged thirty two, having been born in September 1981. He has a three year old son and a seven year old daughter . The plaintiff’s wife worked part time until a couple of months ago.
17 The plaintiff attended school to Year 9 and then did an apprenticeship in plumbing. He has worked as a stock controller for Bursons between 1995 and 1996; a spare parts delivery driver for Jones Trucks between 1997 and 1998; a kitchen hand for Five Star Meats between 1998 and 1999, and a diary hand for Morgan Dairies between 1991 and 2001.
18 After a short initial period of employment with the defendant, the plaintiff was later re employed on 4 September 2002 as a mechanical services plumber performing work in various locations including Bright, Mount Buller and Beechworth.
19 The work was often heavy and physical. The plaintiff was required to install air conditioning units, heating ducts, ducting, flashing and gas lines.
Pre-incident
20 Before the said date, the plaintiff was fit and active. He enjoyed mountain bike riding. He had undertaken major renovations on his house including outside concreting and putting up and painting an outside entertainment area.
21 Since the age of sixteen, the plaintiff had been very passionate about cars, restoring all manner of cars with particular interest in XE Falcons, buying old ones and doing them up, having restored about twenty cars. That work which he undertook in the shed at home involved removing the engine and gear box and spray painting. Often, these tasks were “full on”.
22 The plaintiff was able to mow the lawns without any difficulty and he enjoyed spending time in the garden, having put in garden beds.
23 The plaintiff enjoyed fishing at least once a month along the Murray River with a friend in his boat. The plaintiff enjoyed camping with his boss and sometimes family members, camping between Cobram and Yarrawonga.
24 The plaintiff had just started playing C Grade basketball as at the said date and was considering a request by his mates to play full time.
25 In his heavy work with the defendant, the plaintiff could recall one occasion in 2008 at Shepparton Golf Club when he was installing ducted floor heating when he felt pain in his back (“the Shepparton incident”). He thought he lodged a WorkCover claim and had about two weeks off work. He might have had a CT scan and he resumed seeing a chiropractor whom he continued to see from that time in order to maintain his back.
26 In examination-in-chief, the plaintiff could remember seeing a chiropractor before the Shepparton incident. He could not specifically remember when he first saw a chiropractor, he could just recall he had a sore back but he could not recall if it resulted from a specific incident.[3]
[3]Transcript (“T”) 18
27 Notwithstanding the Shepparton incident, the plaintiff was able to return to normal work and resumed all other activities at home and recreationally.
28 In cross-examination, the plaintiff agreed he had been having back problems for essentially the last fourteen years. He could not recall having referred pain down his right leg in 2000 but that would be the case if that was reported. He could not really remember much about the attendance with Mr Hawtin, chiropractor in 2000, but would not challenge Mr Hawtin’s notes.[4]
[4]T19
29 The plaintiff vaguely recalled seeing a chiropractor in August 2006 when he could not get out of a scissor lift and he experienced pain radiating down his right leg. He could not then remember being told about any disc involvement.[5]
[5]T20
30 The plaintiff was asked about an attendance on Mr Hawtin on 27 September 2007 when he noted the plaintiff lifted a duct in a confined space and had a sharp low back pain and altered sensation in the legs with shooting pain down both legs down the inside.
31 The plaintiff thought he had a maximum of three weeks’ pain at that time.[6]
[6]T21
32 The plaintiff could not recall seeing a lady chiropractor at Dr Hawtin’s practice on 2 April 2008. He could not recall saying he had pain for two or three days’ duration and had trouble putting on his shoes. He recalled some of the note that the back pain was terrible and he had lost sensation in both calves and the right leg had a dull ache like a growing pain and he had been referred to hospital for some scans. He could not remember being told the results of the 2008 scan.[7]
[7]T23
33 The plaintiff was not aware of having a month off work in 2008 but agreed he had made a compensation claim. He could then recall having been told there was a bulge shown on the scan when he was shown the Claim Form completed by him on 28 April 2008 where he described his injuries as “bulged disc on lower back”, lifting a roll of lead out of the back of a ute.[8]
[8]T24
34 In Spring 2009, the plaintiff was not doing his exercises on a regular basis, just when the pain was present. The pain would go away altogether and come back with activities such as heavy lifting or twisting with a load.
35 Running was okay for the plaintiff in 2009. He was doing heavy lifting doing up his cars but this was not every day. He would lift a gear box with another person and always got help with bigger items. Working on cars during that time, however, was not productive of pain. He could bend to sand and that did not cause a problem.[9]
[9]T27
36 The plaintiff agreed he had had a pretty consistent problem with his pain and with referred leg symptoms for over ten years before the incident.[10]
[10]T28
37 The plaintiff could not really remember what he told doctors about his history during that period.
38 The plaintiff confirmed that prior to the incident the subject of this application, he was undertaking recreational activities and domestic activities described in his affidavit, despite having chiropractic treatment. He would be fine after treatment. He was doing all the tasks required as a plumber. Work on his cars at home did not come close to the duties he was carrying out at work.[11]
[11]T64
The incident
39 The plaintiff suffered injury on the said date when lifting heavy air conditioning ducts at a school in Deniliquin. Having put four or five of the ducts onto the duct lifter, the plaintiff felt a sharp pain in his low back (“the incident”).
40 The plaintiff saw his chiropractor, Mr Hawtin, the next morning. He suggested the plaintiff go to a doctor. The plaintiff attended his general practitioner later that day. Dr Eknayake organised a CT scan which showed bulging at L4-5 and L5-S1.
41 Dr Eknayake certified the plaintiff unfit for work. The plaintiff lodged a claim on 28 June 2010, which was accepted. He has not returned to work since.
42 The plaintiff was referred to orthopaedic surgeon, Mr Falkenberg, who felt the changes on CT scan did not warrant surgery and he suggested management with Dr Todhunter.
43 The plaintiff ended up seeing another orthopaedic surgeon, Mr Brighton‑Knight, who organised an MRI scan in August 2010 which showed an L5-S1 disc prolapse. He advised the only surgery that might help would be a fusion. However, in the meantime the surgeon suggested pain management with Dr Lim, Consultant in rehabilitation and pain medicine.
44 The plaintiff first saw Dr Lim in November 2010. He thought the plaintiff would benefit from a rehabilitation clinic and he commenced him on a trial of Lyrica.
45 The plaintiff’s back was pretty bad in 2010. He disagreed it would have settled back to a lesser level, he just managed to live with it. The severity of the pain is still the same, it is just how he has managed it. His back has stayed basically the same all the way through, give or take a good or a bad day.[12]
[12]T33
46 Mr Brighton‑Knight saw the plaintiff again in January 2011 and organised a further MRI scan which confirmed the presence of an L5-S1 disc prolapse.
47 The plaintiff ended up having pain management at NERC in about June 2011 with a course involving physiotherapy, hydrotherapy and medication including Endep and Seroquel which helped him sleep at night.
48 The plaintiff was reviewed by Mr Brighton‑Knight in October 2011. He then told the plaintiff that surgery may help, although he did not perform a fusion or disc replacement surgery. Because of the severity of his pain, the plaintiff indicated he would consider proceeding with surgery. However, the surgeon indicated that a disc replacement would last only about ten years and could be life threatening, so the plaintiff elected not to go ahead with that procedure.
49 The plaintiff deposed in September 2012, that he experienced constant and ongoing low back pain running down both legs, worse on the right. He also had numbness and pins and needles in the soles of both feet. Because of his pain, the plaintiff’s sleep was often affected.
50 The plaintiff had then put on about 15 kilograms because of inactivity. He was continuing under the care of his general practitioner, who was giving him certificates. The plaintiff told her that he was keen to work, and she was more recently supplying him with certificates for modified duties with lifting restrictions of 5 kilograms, no bending and no prolonged standing.
51 The plaintiff was then taking Seroquel but tried to avoid medication because he wanted to stay alert for his children. He also took Naprosyn slow release, about 100 milligrams at night, that helped with pain. He had asked WorkCover to fund a gym membership but had received no response.
52 Despite pain and restrictions, the plaintiff had made a number of attempts looking for work. There was no way he would be able to return to work as a plumber. He had looked for work in the retail industry at a number of places locally – an exhaust shop in Shepparton and a local Repco spare parts shop – without any success.[13]
[13]T50
53 As soon as the plaintiff told a prospective boss of his back injury, they were not interested in putting him on. In any event, even if he was successful in obtaining work, the plaintiff did not know for how long he could cope.[14]
[14]T55-6
54 From time to time, the plaintiff went to a friend’s garage and passed him the odd tool to relieve the boredom.
55 The plaintiff was in receipt of weekly payments until December 2012. He had not been offered any retraining or rehabilitation. He was not sure what else he could do because he had little education and had always done heavy manual work.
56 The plaintiff had been unable to resume riding a mountain bike. He could do about ten per cent of the work he previously did on cars and if he needed heavier work done, he asked mates for help.
57 In the garden, it was difficult to perform the tasks that were previously easy and it was harder for the plaintiff to mow and he left the weeding to his wife. He could manage with the Whipper Snipper but it hurt and he simply put up with it. He had sought help from WorkCover for home help and gardening.
58 Some of the renovations at home had come to a halt and the outside area was only three quarters completed. There were curtains dangling where the plaintiff should have finished the doors for the wardrobe. He had not even been able to finish work on the fireplace in the lounge area.
59 The plaintiff did not go fishing as often as previously. On a recent trip, he went out for about an hour and a half or less. Being on his feet for that time took its toll on his back.
60 The plaintiff socialised far less than previously. He had not been able to play basketball. He found it very upsetting not to be able to play with his children the way he would like to. He used to ride motorbikes with his daughter all the time before the injury. They also used to play at the football oval over the road but he was now restricted in that regard.
61 The plaintiff had difficulty swimming in the pool at home and needed to take care when swimming with his children. Further, the cold water aggravated his back pain. The plaintiff had put on about fifteen kilograms and he was no longer able to walk the labrador.
62 The plaintiff swore a supplementary affidavit in March 2014 in which he stated there was no real improvement in his condition.
63 The plaintiff continues to suffer low back pain, present all the time, which can be aggravated, depending on what activity he is performing. The pain shoots down both legs, more so on the right. In addition, it is accompanied by a sensation of pins and needles.
64 The plaintiff has difficulty going to sleep because of pain. Consequently, he wakes up in the morning feeling fatigued and tired.
65 The plaintiff continues to see his general practitioner every three months and she continues to certify him as unfit for work.
66 The plaintiff tries to avoid painkillers as they knock him out and he does not want to be dependent on them but when the pain is really bad, he takes a couple of Naprosyn slow release per week.
67 The plaintiff was referred back to his specialist, Mr Brighton‑Knight, in early 2013 because the pain was so bad and he wanted something to fix it. The previous recommendation that surgery was not the way to go was confirmed and the plaintiff has simply elected to put up with his pain.
68 Due to pain, the plaintiff continues to have difficulty standing for prolonged periods, with more than about twenty minutes to half an hour his limit. Depending on what chair he is sitting on, he can sit for an hour. He is able to walk 500 to 750 metres before it is uncomfortable. He cannot run and would describe attempts to do so as more of a shuffle.
69 Prior to his injury, the plaintiff was earning about $1,000 per week. He currently receives Newstart of $420 per fortnight. He and his wife are in dire financial straits with mortgage repayments of $330 per week. They tried to get by with his wife working part time selling party goods but to say they were struggling would an understatement.
70 The plaintiff was then thinking about selling at least two of his three XF Falcons to make ends meet. He has not been able to perform any mechanical repairs of significance on those vehicles since his injury. Washing the vehicles is about it.
71 If the plaintiff had not had financial problems there are three cars he would be doing up. He had bought two off the internet since the incident but had not bought them to do them up, he bought them to have them in the shed because he liked the model. His intention was just to clean them up.
72 The plaintiff has not done any rebuild although there was a note on his Facebook page in February 2013 “The rebuild finally begins”.[15]
[15]T38
73 In cross-examination, the plaintiff initially denied he had gone to Tasmania in the last year and then said he had forgotten he had gone there to pick up his partner’s Territory vehicle. He did not drive to Adelaide to pick up a car. Someone from Adelaide purchased one of his cars. The plaintiff then said he thought he might have gone to Adelaide to collect a car he had bought there.
74 The plaintiff agreed he buys and sells car parts on Facebook to make money. He does not pay tax or tell Centrelink. He is just selling parts that have been sitting in the shed. It is not like it is a job. He would not call it an income although he does receive money.[16]
[16]T40
75 The plaintiff has just worked on his own car at home since the incident. He denied he had been involved in stripping the black XD, having been taken to a Facebook entry in October 2012 setting out “This thing is stripped now for a full rebuild”. The plaintiff personally has not been stripping cars. He might take a little bit off here and there but not the full strip. He probably gets help from his mates but they do not really come over that much to help him. He has not rebuilt a car.[17]
[17]T42
Work
76 There is no way the plaintiff could go back to his old trade. He has been offered minimal rehabilitation assistance by WorkCover.
77 The plaintiff agreed he had missed appointments with the vocational assessor but he had not received notification of those appointments. He was interested in one job described to him, working as a spare parts interpreter.
78 The plaintiff has looked for work, such as a car parts salesman and with plumbing suppliers, but, realistically, he does not believe he would be capable of doing those jobs, due to prolonged sitting and standing, even if he were able to get a job.[18]
[18]T35
79 In the past, the plaintiff has worked at Bursons stocking shelves. The items there were more little picky parts and most weighed under 5 kilograms. He got that job because his mother knew the manager. He worked out the back, not serving customers.[19]
[19]T36
Activities
80 The plaintiff is restricted in what he can do domestically and recreationally. His daughter is a member of the BMX club and he has decided to help out, taking up the job of vice president. He is not involved in administrative duties in this role, just welcoming new members to the club. He helps rake the track a bit but doing so is painful. He tries to help rake a bit using a roller but finds it quite painful.
81 When driving to places like Melbourne and Bendigo for BMX competitions, the plaintiff needs to pull over and rest on the side of the road. He needs to take his own chair to competitions as he cannot stand the whole day watching.
82 Last year, the plaintiff and his family went to Canberra for a BMX event. He had to take painkillers before they left and a number of times before arriving. He does not look forward to further trips.
83 Unfortunately, the plaintiff is not able to get involved physically as he would like, as other parents do. He would like to ride the BMX with his daughter and it hurts him to be a bystander. He tried riding twice in the last year but found it too difficult.
84 The plaintiff could have travelled to Sydney in the last two years. He agreed he did a bit of travelling to his daughter’s BMX competitions.
85 The plaintiff mows the lawn and fortunately now has a self-propelled lawn mower funded by the defendant. He tends to empty the catcher when it is half full and usually bends from his knees rather than his back. He is able to manage the Whipper Snipper, although it can be painful when twisting. He tries to do weeding and tends to sit on a ledge about 12 inches off the ground when doing so.
86 The plaintiff only performs limited domestic activities with a bit of mopping and vacuuming and avoids heavier tasks such as washing and carrying the basket of washing.
87 The plaintiff and his wife have only gone to the pictures once during the last year and it was uncomfortable for him to sit during the film and he had to get up and stretch his legs and walk in the foyer.
88 A lot of maintenance jobs remain in urgent repair around the house with painting and replastering required. The entertainment area needs to be finished, as does the area around the pool but the plaintiff cannot complete those tasks because of his back pain. The pool also needs repairs but the plaintiff does not have the money to do them.
89 The plaintiff has put on a considerable amount of weight and now weighs up to 105 kilograms, although he managed to reduce his weight to 95 kilograms.
90 The plaintiff remains restricted in his fishing activities and has only been once in the last year in his father-in-law’s tinny at Cobrawonga. The plaintiff remains incapable of walking the dog.
91 When the plaintiff’s wife was working, he spent time at home looking after the baby and he did some housework. He could not necessarily take his baby for walks. He could change and feed him. The plaintiff and his wife had worked out a way of getting the baby in and out of the car without lifting him too much. The plaintiff tried not to carry the baby but he could if he had to.[20]
[20]T30
92 The plaintiff agreed that in 2012, his general practitioner certified him fit for alternative duties. He agreed he was looking at one stage at some voluntary work, like the BMX club. He wanted to work with troubled kids.
93 The plaintiff was waiting to hear back about some possible work experience but then the BMX club came along so he has not pursued the youth work further.
94 The plaintiff wanted to do some work experience before he looked at a course to see if he liked it. He is still keen on the idea of it. Most likely he might feel motivated enough to see if there were courses. The plaintiff agreed he had time to follow up in this regard and nothing was stopping him. He is aware he can apply for retraining and he has not canvassed that possibility in youth work.
95 The plaintiff has not had any training in Youth Services and does not know what the training involves and is really interested in voluntary work just to get out of the house and do something.[21]
[21]T65-6
96 The plaintiff was thinking about Berry Street and he had spoken to a worker there, who was a friend of his wife, but he had not pursued that issue. The friend has not told the plaintiff work experience is available at the moment nor did she say such experience could lead to a job.
97 The plaintiff is interested in doing spare parts work but there are also heavy parts at Bursons. He then agreed there were small parts involved in that job but he did not know how he would go with prolonged standing “and all that sort of stuff”.[22]
[22]T50
98 The plaintiff went to Bursons, just asking if there was a stock controller job as he knew the manager. A job was not advertised. The manager told him he would not be suitable because of his injury.
99 The plaintiff agreed he talked to his general practitioner about a range of jobs she thought were suitable and that she thought re-education was appropriate, although not mentioning any particular retraining. There had been a conversation as early as 2012 but the plaintiff had not done anything about seeking re-education.
100 The plaintiff agreed he could work as a mechanic on small motors because he was well equipped to do that type of work as he had but been doing it for so long and he had an interest in it, although he has no formal training.[23]
[23]T52
101 The plaintiff agreed he had to use a computer during his apprenticeship but he was not required to do great amounts of typing, it was just entry and pressing buttons, tasks which would not be beyond him.[24]
[24]T54
102 Working in building estimation would not necessarily interest the plaintiff. He does not know what a building estimator does, he has never worked as one. He would have problems walking around and inspecting building sites if that was what the job involved. Driving between the sites on a daily basis would be a problem.
103 The plaintiff agreed he could do something in plumbing sales. He was not aware of further training that would be required. He could possibly look at training in the future.
104 Some plumbing supplies are heavy. Air-conditioning ducts and heating ducts, depending on their size, weigh between 5 to 160 kilograms. The plaintiff did not think he could handle heavy weights. There was a requirement to lift both light and heavy weights involved in plumbing supplied so far as he had seen.[25]
[25]T56
105 Bursons stock products in excess of 5 kilograms, such as batteries, which are very heavy, and he would have to help female customers with. Goods also arrive in boxes and he would have to lift boxes, open them and take out items and stock them on the shelf as a stock controller and that might require work on higher shelves.
106 The plaintiff is not aware of being suited to any particular retraining. The vocational assessor told him he was suitable as a WorkCover assessor but he would need retraining. The plaintiff had not been told what was available. He would do it if he could. He was just told there was a TAFE course with no specific details; however, the plaintiff could not sit for a prolonged period of time at a course. [26]
[26]T60
107 Since the incident, the plaintiff did not think he would be in a position to restore a “bomb” like he used to. Selling car parts on the internet does not produce a lot of money, he just does it to try and do something he really enjoys and keeps his mind off everything else that is going on.[27] He sold parts on the internet before the incident and after, and does not make a living from it.[28]
[27]T63
[28]T64
SCHEDULE OF EARNINGS
Financial Year Ending Employer Gross Earnings 2005 KML Sheet Metal and Air Conditioning Pty Ltd $27,847 2006 KLM Sheet Metal and Air Conditioning Pty Ltd $35,145 2007 KLM Sheet Metal and Air Conditioning Pty Ltd $38,436 2008 KLM Sheet Metal and Air Conditioning Pty Ltd $43,969 2009 KLM Sheet Metal and Air Conditioning Pty Ltd $47,254 2010 KLM Sheet Metal and Air Conditioning Pty Ltd $51,517 2011 KLM Sheet Metal and Air Conditioning Pty Ltd $45,001 2012 KLM Sheet Metal and Air Conditioning Pty Ltd $38,272 2012 Long Service Leave entitlements $10,675 2013 KLM Sheet Metal and Air Conditioning Pty Ltd $16,633 2013 Centrelink $6,024
The Plaintiff’s medical evidence
Treaters
108 Dr Hawtin, chiropractor, reported in February 2014.
109 Dr Hawtin first saw the plaintiff in March 2000 for treatment of low back and right leg pain associated with no specific trauma.
110 The plaintiff was seen once in 2001, 2002 and 2003. Treatment in 2001 and 2002 was for low back pain. In 2003 it was for a jarred neck after he fell off his BMX bike. On each occasion the plaintiff’s condition was resolved with one treatment.
111 On 17 February 2005, the plaintiff presented after lifting a heavy object at work. He reported his back had been sore for two weeks. This was the first incident where there was a sign of possible disc involvement. The plaintiff was seen once again in 2005 and then twice in August 2006 for a work related event in which he was unable to get out of a scissor lift. He then had radiating right leg pain.
112 On 27 September 2007, the plaintiff reported he had injured his back at work while lifting a duct, experiencing sharp pain in the central low back and he reported having changed sensation in his legs. This lumbar facet sprain resolved over the ensuing five days with antiinflammatories. It was aggravated again five weeks later by lifting at work and then resolved after a second treatment.
113 On 2 April 2008, the plaintiff consulted Ms Crupi, who noted:
“Low back out again. Same spot as usual two to three days’ duration. Difficulty putting on shoes.”
114 Dr Hawtin saw the plaintiff two weeks later. The plaintiff then reported his back was terrible and he had lost some sensation in both calves, and the right leg had a dull ache like a growing pain. He had reported to the hospital for care and had been referred for scans.
115 Dr Hawtin advised the plaintiff to proceed with the scans and advised him he suspected he had a right posterior lateral disc bulge affecting the L5-S1 nerve root.
116 The plaintiff had a month off work and did not seek care until four months later when he once again lifted something too heavy at work and stirred up low back and right leg pain.
117 At that time in 2009, the plaintiff was instructed in exercises which he performed diligently throughout the year. He sought care six times during that year, reporting that the exercises had allowed him to reduce his leg pain during times of increased severity.
118 The plaintiff had a hiatus in treatment for seven months.
119 On 8 April 2010, the plaintiff reported two days of low back pain. His back was sore all the time and not improving. He felt the lack of improvement was due to the amount of flexed work he was doing at work at that time.
120 The next time the plaintiff attended was for the incident injury when he was barely able to move.
121 The plaintiff was not seen again for seven months until January 2011 when he reported an aggravation the preceding day and that he was to see a surgeon for his low back.
122 Dr Hawtin did not see the plaintiff for the next eighteen months until 9 October 2012 after he moved the wrong way and aggravated his low back. The plaintiff reported that the pain management course had helped a bit with his coping skills but the pain had not changed.
123 Dr Hawtin noted the plaintiff had not been free of pain in the last forty-four months and the best result achieved had been pain reduced to a tolerable level maintained mostly by the plaintiff’s diligence with his exercises.
124 Prior to the incident, the plaintiff had not complained of left leg pain, sensation changes in the soles of both feet and the testicular squeezing sensation he now reported.
125 Dr Hawtin noted the significant change in the nature, severity and distribution of the plaintiff’s symptoms at that point suggested a progression of his 2008 disc injury to the left paracentral disc protrusion at L5-S1. In his view, the absence of evidence of nerve root involvement did not constitute evidence of absence; products of inflammation from adjacent structures can irritate nerve roots and produce radiation of pain down the nerve.
126 Dr Hawtin noted the bilateral nature of the plaintiff’s leg pain was not supported by imaging. However, his June 2010 MRI scan reported localised L4-5 and L5-S1 disc disease which could be a source of discogenic low back pain.
127 Dr Hawtin noted the incident injury had left the plaintiff totally incapacitated. He cannot sit for more than 30 minutes or stand more than 10 minutes without pain forcing a change in position. He cannot walk for more than 500 metres without pain forcing him to stop. The plaintiff sleeps less than four hours a night and is not able to perform household chores and has a restricted social life.
128 Dr Hawtin thought that without some significant proactive investigation and treatment, the plaintiff’s prognosis was very poor.
129 The plaintiff was referred to Dr Terrence Lim by Mr Brighton‑Knight in November 2010. Dr Lim advised Mr Brighton‑Knight that he thought the plaintiff would benefit from attending the pain rehabilitation course and he had made that referral. In the meantime, he commenced the plaintiff on a trial of Lyrica to reduce the amplification of pain due to sensitisation.
130 In July 2011, Dr Lim wrote to Mr Brighton‑Knight advising the plaintiff was about to complete the final week of the course.
131 The plaintiff had stated his pain had remained the same. However, his posture was more normalised and his movement patterns were certainly much more normalised as well.
132 Dr Lim advised the next step was for the plaintiff to continue to self manage whilst he pursued future vocational options. Things were no longer quite the same at home and that remained a major issue, noting the plaintiff still had some acceptance adjustment issues to address. Dr Lim understood the plaintiff would be attending a local psychiatrist to continue the work he had commenced with the NERC pain psychologist.
133 Dr Lim also noted the plaintiff had been the bread winner and that role had now reverted to his wife, while he cared for his young children. Dr Lim understood the plaintiff was performing some voluntary work in a friend’s garage. His aim was to find alternative employment in the motor vehicle industry.
134 As the plaintiff knew how to self treat-manage quite well, his NERC team did not believe that further attendance was warranted.
135 Olivia Marino, senior occupational therapist from North Eastern Rehabilitation Centre, reported to Allianz in June 2011 that the plaintiff had been attending the NERC pain management program. She requested funding for a self-propelled mower to help the plaintiff.
136 Dr Ekanayake referred the plaintiff to Mr Brighton-Knight on 10 June 2010 and again in February 2013.
137 In the most recent referral letter, Dr Ekanayake noted the plaintiff was having severe back pain post work related injury. Even post pain management, he felt he was unable to work, since he had tried simple home chores which aggravated his back pain and he was not able to cope. The plaintiff was then taking Naprosyn and Valium.
138 Dr Ekanayake also referred the plaintiff for hydrotherapy on 5 August 2013.
139 Mr Brighton‑Knight reported in 2010 that he thought the plaintiff had acute, on chronic, disc herniation at L5-S1 causing bilateral S1 nerve root compression and that was seen on CT scan consistent with the sudden onset of severe bilateral radicular pain in the incident.
140 Mr Brighton‑Knight advised that the plaintiff needed something that would give him increased neuroleptic pain treatment. He had given him Amitriptyline to take at night and suggested the general practitioner might want to consider putting the plaintiff on some longer acting opioid medication such as Tramadol SR, or OxyContin low dose. He had also arranged for an MRI scan.
141 Mr Brighton‑Knight advised the MRI scan showed no neurologically compressive lesions. It showed advanced degenerative changes at L5-S1 and also moderated degenerative changes at L4-5.
142 Mr Brighton‑Knight thought the only surgical intervention that would make a difference to the plaintiff would either be a hybrid disc replacement disc fusion or a disc fusion across two levels. He noted that was a reversible, highly invasive procedure that only worked 70 per cent of the time and that before considering that surgery, the plaintiff should seriously consider maximising the opportunity of benefiting from non-surgical management. Given he believed the plaintiff had a Chronic Pain Syndrome, he thought he should see a pain management specialist and had suggested Dr Lim.
143 As of August 2010, Mr Brighton‑Knight thought it would be many months before the plaintiff had the physical capacity to return to any form of manual labour, although he could sit in an office answering the phone. He understood the defendant could not find work for the plaintiff which made his life socially very difficult. However, Mr Brighton-Knight did not think rushing into surgery was the solution. It would only be if the plaintiff failed high quality pain management that he would consider any form of surgery.
144 The plaintiff again saw Mr Brighton‑Knight in October 2011 and discussed the possibility of surgery, having been told by an independent medical examiner that he should have a simple discectomy and that would cure his pain. Mr Brighton‑Knight thought that the plaintiff should not, under any circumstances, undergo a simple discectomy and that treatment would only be justifiable if he developed a neurocompressive lesion.
145 On examination that day, there was no evidence of any neurocompressive lesion. However, Mr Brighton‑Knight advised the plaintiff to have another MRI scan to prove there was no ongoing neural compression and if that was the case, then he should not, under any circumstances, undergo a discectomy.
146 Mr Brighton‑Knight thought the plaintiff still may improve from some form of spinal or stabilisation operation such as a disc replacement and fusion or a two-level fusion. However, he did not perform that type of surgery and his advice would be the plaintiff be referred to someone else.
147 It seemed, however, that the plaintiff could manage his pain, and his personal desire was not to undergo a major operation but to try and manage his pain conservatively, with job modifications as necessary. Mr Brighton‑Knight advised he was awaiting the result of the MRI scan.
Medico-legal examiners
148 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff on behalf of Allianz in October 2010.
149 The plaintiff told Mr Moran he experienced low back pain at work in 2008 which was the subject of a WorkCover claim. The plaintiff was off work for eight weeks and saw a physiotherapist for about two months. The plaintiff said his back had never been a hundred per cent after that episode and since then, he had been seeing his chiropractor once a fortnight.
150 The plaintiff described the incident on the said date lifting 180 kilogram steel ductwork with a co-worker when he experienced low back pain.
151 On physical examination, Mr Moran found some restriction of lumbosacral movement. Straight leg raising was to 70 degrees bilaterally and lower limb reflexes were normal.
152 Mr Moran diagnosed an L5-S1 disc prolapse with aggravation of the L4-5 disc degeneration caused by the incident at work, which was likely to have been an aggravation of the 2008 back injury.
153 Mr Moran thought the plaintiff was not fit to return to work in his pre-injury duties as a plumber. He thought the plaintiff had a current work capacity. He noted the plaintiff attended school to Year 10 but did not finish that year.
154 The plaintiff had been a plumber all his working life. If the plaintiff was to find alternative employment, Mr Moran thought he would require retraining to obtain suitable light duty work.
155 In Mr Moran’s opinion, the plaintiff was fit only for light duty employment; namely work not involving repeated bending and/or heavy lifting and work in which he had the flexibility to sit or stand as pain dictated. He was not fit to return to work as a plumber because of the amount of bending and lifting involved.
156 Mr Moran re-examined the plaintiff on 24 October 2011. The plaintiff then advised he was symptomatically unchanged compared to the previous visit.
157 Examination findings were similar to the previous examination.
158 Mr Moran was provided with the NES vocational assessment report from IPAR dated 4 October 2010 and a job seeker plan of 18 May 2011.
159 Mr Moran confirmed the plaintiff would never be fit to return to his trade. He was permanently fit only for light employment with the work not involving repeated bending and/or heavy lifting and work in which he had the flexibility to sit or stand as pain dictated.
160 Mr Moran thought the plaintiff may be assisted by a WorkSafe facilitated referral to a vocational rehabilitation expert, an occupational rehabilitation program, NES, a physiotherapist with expertise in return to work and/or a functional restoration program.
161 Mr Moran noted he had discussed the employment options as set out in the assessment with the plaintiff. The plaintiff said options 1, 3, 4 and 5 would be suitable (Mr Moran agreed) but option 2, plumbing services representative, would not be suitable because of the amount of driving involved, with the plaintiff saying he could only drive for about an hour before needing a ten minute break because of back pain.
162 Mr Peter Scott, consultant surgeon, examined the plaintiff for Allianz on 16 August 2011 for the purposes of an AMA assessment.
163 On examination, there was some mild discomfort experienced at extremes of lumbar movement. There was no evidence of any muscle spasm or tenderness over the sacroiliac joints. Bilateral straight leg raising was to 45 degrees associated with backache, but no sciatica. There was no neurological disturbance or abnormality with no evidence of any lower limb radiculopathy.
164 Mr Scott’s diagnosis was one of recurring low back pain initiated under compensable circumstances in the incident, noting there had been minimal recovery despite ongoing conservative treatment.
165 Mr Scott noted the plaintiff did mention he had had some minor backache in the past for which he had seen a chiropractor but he could not remember having lost any time from work or having had any investigations, and the major problem became apparent on the said date.
166 Mr Scott thought the treatment was the incomplete and he was unable to state a prognosis.
167 Mr Stephen Leitl examined the plaintiff on behalf of Allianz in January 2012 for the purposes of an AMA assessment.
168 There was employer supplied evidence of complaints of back pain on 16 August 2006, 17 April 2008 and 24 September 2009, of which the plaintiff said he had no recall.
169 The plaintiff could recall a lower back pain episode that occurred in early 2009 when he was installing ducting in the Shepparton Golf Club, when he hurt himself lifting and required several weeks off work and had physiotherapy and he fully recovered. Mr Leitl noted this account was supported by the plaintiff’s ability to work unhindered for the next twelve months.
170 Mr Leitl noted the CT scan of the lumbar spine of April 2008 showed similar findings to the 2010 CT scan. He thought the August 2010 MRI scan showed disc degeneration at L4-5 and L5-S1 and moderate central disc bulge at L5‑S1, commenting it was likely the previous episodes of back pain were an indication of some developing disc degeneration and back vulnerability.
171 Mr Leitl thought the objective findings were that the plaintiff had a reduced range of lumbar movement, paravertebral muscle guarding, reduced right straight leg raising, but no hard evidence of objective lower limb neurological signs that would indicate he had radiculopathy.
172 Mr Leitl thought the plaintiff had persisting dysfunction of the lumbar spine with referred symptoms to both lower limbs but no hard objective signs of radiculopathy. He considered the plaintiff’s current back condition with referred symptoms to the lower limbs was directly due to the incident. It was unlikely the condition would resolve in the foreseeable future and he noted the plaintiff continued with treatment that was mainly medication based.
173 Mr Leitl thought the plaintiff’s back condition prevented return to his pre-injury employment and any work that would involve heavy strains on his back. He noted the plaintiff’s activities of daily living were accomplished independently. In his view, the plaintiff had a vulnerable spine and was likely to make his back worse by engaging in activities that produced increased strains on the lumbar spine.
174 Mr Leitl considered the plaintiff’s back condition had substantially stabilised because it had remained unchanged over the last six months and there were no plans for further treatment, including surgery.
175 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in October 2013.
176 The plaintiff told him of eleven years’ work as a plumber and then the incident on the said date.
177 The plaintiff reported that in approximately 2008, he experienced an episode of low back pain in the course of his employment. As a result, he was off work for about a week undergoing some chiropractic treatment which resolved the problem, the plaintiff indicating that he returned to unrestricted employment and activities.
178 On examination, Mr O’Brien thought physical signs remained subjective with marked restriction of lumbar movement; however, there were no signs which indicated the presence of nerve root compression or any radiculopathy.
179 Mr O’Brien noted the report of a CT scan of the lumbar spine of 10 June 2010 and MRI scans of 10 August 2010 and 24 January 2011. The reports confirmed some degenerative change at the L5-S1 disc; however, there was no nerve root involvement.
180 Mr O’Brien considered the investigations did not define any specific pathology to explain the plaintiff’s extensive back and bilateral leg pain. He therefore concluded the plaintiff now presented with significant chronic nonspecific back and bilateral leg pain, to which employment remained a significant contributing factor to the clinical problem.
181 Mr O’Brien thought the history suggested a stable clinical condition, noting the plaintiff was soon to be reviewed by Dr Lim which may result in some further more active conservative treatment. However, Mr O’Brien suggested it unlikely there would be any substantial change in the severity of ongoing chronic pain. However, he considered that a conservative course should be pursued. He thought the prognosis was poor.
182 Clearly, from a physical perspective, Mr O’Brien thought the plaintiff was not capable of return to his pre-injury occupation. He had no doubt the plaintiff could not undertake any employment which involved manual type duties. Indeed, given the plaintiff’s employment background, Mr O’Brien would consider it highly unlikely he would be able to undertake suitable employment, particularly considering the significant severity and distribution of chronic pain.
183 Thus, Mr O’Brien would suggest, from a clinical perspective, the plaintiff was now totally incapacitated and he would consider that it was extremely likely that that was a permanent situation. He noted the plaintiff undoubtedly remained significantly limited in his general social, domestic and recreational activities and that would be ongoing.
184 Dr Philip Mutton, occupational physician, examined the plaintiff on behalf of the defendant in December 2013.
185 The plaintiff told Mr Mutton of a history of back injury in 2008 when he suffered localised low back pain that settled over the course of a week and there had been no further problems. He had some chiropractic treatment and there were no lower limb symptoms.
186 Dr Mutton noted the circumstances of the incident and the investigations undertaken to date.
187 On examination, there was no palpable paravertebral muscle spasm but the plaintiff was a little tender to the right of the lower back. Reflexes were brisk. There was some sensory change in the right foot but no change between big and little toe. The plaintiff had difficulty lying flat with his legs extended. However, straight leg raising appeared to be 30 to 40 degrees bilaterally.
188 The plaintiff provided a history of acute low back pain in the course of work in the incident and having not worked since.
189 Dr Mutton noted there was a prior history of acute back pain in 2008 from which the plaintiff had recovered over a short period of time. There had been no intervertebral change in terms of the CT scan findings of 2008 to 2010.
190 It was also noteworthy the plaintiff had had two MRI scans and there had been no intervertebral change from 10 August 2010 to 24 January 2011.
191 Dr Mutton noted the relevant findings related to disc pathology at L5-S1 by way of broad left paracentral disc protrusion without impingement and there was also some facet joint degeneration.
192 Dr Mutton thought the plaintiff presented as quite severely affected by his lower back condition, perhaps greater than would normally be expected for a young man of his age with the pathology identified.
193 Dr Mutton noted the plaintiff was currently in receipt of significant treatment beyond Naproxen.
194 Dr Mutton described the plaintiff’s presentation as acute lower back pain with subsequent development of lower limb symptoms after two weeks of the incident occurring.
195 Dr Mutton thought there appeared to be a continuity of symptoms since the incident, with subsequent development of lower limb symptoms within two weeks and thereafter stabilisation. Therefore, he could conclude that the plaintiff’s condition related to the incident.
196 Dr Mutton thought there was some functional component, in as much as there was some pain behaviour not apparent during the interview but apparent during physical examination. However, he believed the plaintiff suffered from significant pain, as there was some consistency in terms of his responses throughout the physical examination itself. He noted some frustration by the plaintiff due to his failure to progress and obtain an easy, quick fix. The plaintiff had hoped that surgery would do that for him but fortunately he had been advised that conservative measures were best.
197 Despite the ongoing complaints of pain and some embellishment on examination, overall, Dr Mutton thought the plaintiff was quite genuine, borne out to some extent by the fact that he had taken up the role of doing some gardening, having been provided with a self-propelled lawn mower.
198 Dr Mutton thought what was disappointing was that the plaintiff had not taken it upon himself to look into retraining or other forms of employment and given his age and many years ahead, it was particularly important he consider his future options.
199 In Dr Mutton’s view, the plaintiff clearly had restricted lower lumbar function and should avoid tasks where he was repetitively bending at the waist and lifting more than 10 kilograms.
200 Dr Mutton thought the plaintiff would be ideally suited to a situation where he could sit and stand and interchange. He should not be required to do professional driving in the course of work. Within those restrictions, Dr Mutton thought it likely the plaintiff could work at least half time initially and possibly longer, noting he did a range of household activities while his wife was at work and that demonstrated he had some capacity for work.
201 Dr Mutton concluded the plaintiff could certainly utilise his current skill base in plumbing to pursue further interests in construction and building such as estimating and sales.
202 Mr Kevin Siu, neurosurgeon, examined the plaintiff on 2 December 2013 on behalf of the defendant.
203 Mr Siu concluded the plaintiff injured his back after repetitive lifting of some heavy air conditioning ducts. He noted there was evidence of a prior degenerative condition to the plaintiff’s lumbar spine prior to the incident. An MRI scan taken in 2011 did not show any significant damage.
204 Mr Siu also noted from the material supplied, that there had been a CT scan, showing a central disc prolapse in 2008 prior to the incident. The plaintiff said he may have hurt his back at that stage and had a few days off.
205 The plaintiff told Mr Siu of the incident.
206 On examination, there was some tenderness fairly high up at the level of L2-3 and L3-4, more on the right in the paraspinal region. The plaintiff had more trouble with lifting up the right leg, which he called “the bad leg”. There was no real sensory impairment.
207 Mr Siu thought the plaintiff continued to have residual symptoms following the incident, which was an aggravation of a pre-existing lumbar spondylosis, and his present symptoms appeared to correlate with the incident injury.
208 Mr Siu did not detect any functional component or psychological reaction to the plaintiff’s physical condition.
209 If he returned to work, Mr Siu thought the plaintiff should certainly avoid repetitive bending, twisting and lifting of more than 10 kilograms. He thought the plaintiff could not return to pre injury duties as a plumber and believed that further exploration should be undertaken of his capacity to return to work and some sort of retraining.
210 Mr Brearley, orthopaedic surgeon, examined the plaintiff in July 2013.
211 The plaintiff told him of the incident and that eighteen months prior to suffering injury to his back at work, being off work for two weeks and recovering completely.
212 On examination, there was loss of the lumbar lordotic curve. There was marked restrictions in all directions by pain. Straight leg raising was to thirty degrees bilaterally. There was some sensory reduction over the soles of the feet, particularly on the left side. Sensation was otherwise normal and there was no wasting.
213 Mr Brearley noted the CT scan of the lumbar spine of June 2010 and MRI scans of August 2010 and January 2011.
214 Mr Brearley diagnosed mechanical lumbar back pain due to intradisc injury of the L5-S1 intervertebral disc with back pain. There was nerve root irritation causing back pain but there was no frank nerve root compression causing radiculopathy.
215 Mr Brearley believed the plaintiff’s employment certainly remained a material contributing factor to his current incapacity. He thought, as a result of the plaintiff’s back injuries, he was incapacitated for his pre-injury employment and he could not do any unrestricted manual labour.
216 Mr Brearley thought the plaintiff was capable of doing suitable work if he was given the opportunity. However, given his history of back injury and his ongoing incapacity, there was no likelihood any employer would offer him suitable employment.
217 From a theoretical point of view, Mr Brearley thought the plaintiff could work as a spare parts interpreter or sales person as indicated in the Allianz correspondence. He could work as a plumbing supplier’s representative, liaison officer and also work in some quality control and possibly as a WorkSafe inspector.
218 In addition, the plaintiff could be a youth social worker, which was of interest to him, and he could do light courier duties. Mr Brearley thought the unfitness for pre-injury duties was likely to continue indefinitely in view of the plaintiff’s progress to date.
219 Mr Brearley noted the plaintiff was restricted in all activities on a social, domestic and recreational basis. He could not help his wife with the housework or gardening and he was unable to enjoy any recreational activities.
220 Mr Brearley thought the plaintiff required further conservative treatment. He considered the prognosis was not good and it was likely the plaintiff’s present condition would continue for the foreseeable future.
Compensation documents
221 The plaintiff signed a Claim Form on 28 June 2010 setting out that on 9 June 2010, he suffered bulged discs in his back lifting a heavy duct.
222 The plaintiff lodged a claim for impairment benefits dated 10 June 2011 for back injuries sustained on 9 June 2010 while lifting heavy awkward ducting.
223 By letter of 6 February 2012, Allianz insurance advised the plaintiff that his claim pursuant to s98C for his lower back for injuries suffered on 9 June 2010 had been accepted.
The Defendant’s medical evidence
224 Mr Siu provided a supplementary report having been provided with Mr O’Brien’s report. He disagreed with Mr O’Brien’s view the plaintiff had well established chronic pain and no work capacity. He thought the plaintiff had a capacity for suitable employment, not pre injury duties, and he may need retraining and indeed psychiatric assessment, as he has been out of the workforce and lived in the country and the chances of gainful employment were limited.
225 Dr Mutton also provided a supplementary report, having seen Mr O’Brien’s report. He did not share his “nihilistic viewpoint” as to total incapacity. He thought, given the plaintiff’s age, it was essential to undertake some form of activity. In the absence of such activity, he thought the plaintiff would further decondition and may be subject to further deterioration in his mental state.
Treaters
226 Dr Ekanayake wrote to Dr Michael Brighton-Knight on 10 June 2010, thanking him for seeing the plaintiff, whom she noted presented with severe back pain which he had had for the past two years following a work related trauma and he now got severe pain with pins and needles bilaterally and sometimes with some bowel and bladder symptoms. She noted that the plaintiff was awaiting a CT scan of the lumbosacral spine and his 2008 scan reported there was some disc separation at L5-S1.
227 Dr Michael Brighton-Knight wrote to Dr Eknayake in March 2013 thanking her for the ongoing referral of the plaintiff. He noted the plaintiff’s symptoms had not improved although that was not greatly surprising. He noted there was a substantial improvement in the plaintiff’s demeanour and physical capacity when working through Dr Lim’s program. He thought the plaintiff had fallen back into his pain syndrome and remained quite debilitated since leaving Dr Lim.
228 Mr Brighton-Knight thought it would be excellent for the plaintiff to return to Dr Lim and do the pain management again. However, he thought it quite likely the plaintiff would benefit from moving on with his life and considering social implications of his chronic pain and what that means to him. This also may mean further retraining and reskilling.
229 Mr Brighton-Knight advised he was extremely reluctant to offer an operation, going through the pros and cons again of surgical arthrodesis for the management of back pain and that most patients go through a big procedure and are somewhat disappointed in the end and a handful are worse off. He thought it was a good idea the plaintiff would not want to pursue that course.
230 The plaintiff attended the Emergency Department at Goulburn Valley Hospital on 19 January 2008 for an exacerbation of back pain. It was noted there was a previous history of back pain eight years ago with right leg symptoms.
231 On 25 June 2010, Mr Falkenberg, orthopaedic surgeon, wrote to Dr Ekanayake, thanking her for providing the CT scan reports and noting that the plaintiff had filled in a pain diagram indicating lower half of body discomfort front and back.
232 Mr Falkenberg noted the CT scan abnormalities in the plaintiff’s scans would not receive an operation in his hands. He thought the plaintiff would much more likely be helped with a pain management program and perhaps a percutaneous injection of abnormalities around his L5-S1 disc. He thought a referral to Dr Todhunter would probably be very helpful for the plaintiff and he would not be making an appointment to see him as he could not help him with surgical skills.
233 IPAR wrote to Dr Ekanayake on 21 March 2012 requesting she answer questions in terms of the plaintiff’s rehabilitation.
234 Dr Ekanayake thought the plaintiff had the following physical capacity: lifting less than 5 kilograms; intermittent standing and sitting; restrictions on walking; restricted bending, reaching; and no restriction driving.
235 Dr Ekanayake thought the plaintiff was currently fit to work as a spare parts operator; sales representative, plumbing supplies; retail sales assistant; and small motor engine mechanic. She thought the plaintiff was fit for re-education. She thought the plaintiff was not yet able to achieve maximum recovery since his main issue has not yet completely cured. She thought there were no other factors that impacted on the plaintiff’s ability to work. She thought he was fit for restricted duties and IPAR was better to get an opinion from an occupational therapist specialist in that regard.
236 There was an attendance at the Emergency Department on 1 July 2012 and the presenting complaint was gradual onset, sharp frontal headaches associated with neck stiffness, photophobia.
Overview
237 It is accepted the plaintiff suffered a compensable injury to his lumbar spine in the incident.
238 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[29] such admission should ordinarily be regarded as “very significant”:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[29][2006] VSCA 171
239 No such explanation has been forthcoming in the present case.
240 The plaintiff’s condition relates to the lumbar spine at the L4-5 and L5-S1 levels with a range of diagnoses – including Mr Brighton-Knight who thought there was disc herniation at L4-5 causing bilateral nerve root compression, Mr O’Brien thought there was significant chronic non specific back pain and bilateral leg pain, Dr Mutton diagnosed broad based left paracentral protrusion at L5-S1, Mr Sui found aggravation of pre-existing lumbar spondylosis, Mr Moran described a prolapse at L5-S1 and aggravation of disc degeneration at L4-5 and Mr Brearley diagnosed a disc injury of L5-S1 with nerve root irritation.
241 There was no suggestion that the plaintiff’s lumbar condition is not substantially organically based.
Credit
242 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[30]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[30]Supra
243 Counsel for the defendant did not argue that this was an aggravation case but submitted, as to credit, the plaintiff was less than candid about his pre incident chiropractic treatment and back complaints.[31] It was submitted his initial denial of going to Adelaide and Tasmania when he later admitted this was the case, was an example of his unreliability as a witness, as were his attempts to play down his involvement in car maintenance prior to the incident to ensure any heavy work in that regard was not implicated in his back condition in 2010.
[31]T74
244 It was submitted I should be very careful to accept the entirety of the plaintiff’s evidence because some of his evidence was equivocal and given in a manner hoping to support his case rather than an honest frank account. Further, the plaintiff’s evidence about his capacities should be viewed with some scepticism.
245 Whilst the plaintiff did not disclose the full extent of his pre incident back history, particularly prior to 2008, attendances at the time on the chiropractor were minimal.
246 The plaintiff despite later, more frequent attendances after 2008 and investigations being undertaken that year, was working full time in a heavy job with no restrictions and there was no need for any ongoing treatment or medication as at the said date.
247 While he was having his back adjusted from time to time prior to the incident, the plaintiff continued to work for the defendant with no complaints and until the incident injury.
248 In terms of credit, of greater concern was the plaintiff’s denial of recent interstate trips to collect cars and his evidence about the level to which he has recently worked on his cars. I found it difficult to accept he had forgotten relatively recent interstate trips to collect cars. This situation could not be explained by the plaintiff being an unsophisticated man with memory problems as his counsel submitted.
249 In these circumstances, I have some difficulty accepting the plaintiff’s evidence, particularly in relation to his capacity for employment and rely more heavily on the medical opinion in this regard.
250 Otherwise in terms of the plaintiff’s credit, effectively, counsel for the defendant made no real challenge on the plaintiff’s evidence as to his level of pain and restriction.[32]
[32]T83
251 There was surveillance noted in the index to the defendant’s court book, however no film was shown. Further, no medical examiner suggested the plaintiff exaggerated or embellished his symptoms.
Pain and restriction
252 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[33] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[33]Supra
253 The plaintiff continues to suffer constant low back pain which is activity related. The pain shoots down both legs, more so on the right. In addition, it is accompanied by a sensation of pins and needles.
254 All doctors have accepted the plaintiff suffers a genuine low back injury and suffers ongoing significant pain.
255 Counsel for the defendant conceded that there were some symptoms but they are not serious.[34]
[34]T80
256 As a result of his back condition, the plaintiff is restricted in work involving bending or lifting and remaining in sustained postures.
257 The plaintiff is a young, uneducated man, aged only thirty two.
258 In Stijepic v One Force Group Aust Pty Ltd,[35]Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[35][2009] VSCA 181 at paragraph 43
259 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
260 The plaintiff has required Naprosyn SR for pain relief for a long period of time and there is no indication when his need for this medication will cease.
261 The plaintiff is restricted in his ability to perform household and gardening tasks. He has been unable to complete home renovations he commenced prior to injury.
262 The plaintiff is unable to interact feely with his young children. He is limited in the amount of time he can go fishing and he can no longer walk his labrador.
263 The plaintiff has difficulty getting to sleep most nights because of back pain and consequently wakes up feeling tired the following day.
264 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[36]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[36](supra) at paragraph 45
265 The consensus of medical opinion is that the plaintiff can no longer perform work in his trade as a plumber – a job he commenced in 2001. Further, he does not have a capacity for unrestricted manual work.
266 This is a serious consequence for a young, uneducated man with a history of only manual employment, as is his ongoing pain and restriction and the impact of his back condition on his daily life.
267 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).
268 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.
269 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
270 “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.
271 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.
272 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak.[37]
[37]Supra
273 I am therefore required to determine a “without injury” earnings figure. No actual figures were suggested by counsel in this regard. Counsel for plaintiff submitted the plaintiff had no capacity for suitable employment. On the defendant’s behalf, it was submitted the plaintiff had such a capacity where he would not suffer a forty per cent loss.
274 From an examination of the plaintiff’s earnings three years prior to the said date, after which he ceased work, $45,000 seems an appropriate “without injury” earnings figure. Sixty per cent of that amount is $27,000 or $519 per week.
275 Whilst the defendant conceded the plaintiff has a light work back, it was submitted that the plaintiff has a capacity for suitable employment or is capable of being retrained to a position where he would not suffer the requisite loss.
276 Mr O’Brien is alone in the view that the plaintiff does not have a capacity for suitable employment. I do not accept this opinion, nor was it seriously relied upon by counsel for the plaintiff, who effectively conceded the plaintiff has a light work back.
277 In March 2012, Dr Ekanayake considered the plaintiff suitable for the jobs suggested by IPAR. As the plaintiff’s evidence is that his condition remains static, Dr Ekanayake’s views in April 2012 apply equally today. She also discussed with the plaintiff re-education and told him the suggested jobs were suitable.
278 In March 2013, Mr Brighton-Knight thought it quite likely the plaintiff would benefit from moving on with his life and considering social implications of his chronic pain and what that means to him. This also may mean further retraining and reskilling.
279 All medical examiners save for Mr O’Brien, considered the plaintiff had a light work back and had a capacity for restricted duties on a full time basis. Mr Brearley considered there was a capacity for suitable employment such as plumbing and spare parts, although this capacity was theoretical.
280 I accept that the plaintiff does not possess the skills, experience or training to undertake the role of a WorkSafe inspector or quality assurance officer. Further, he would also be unsuitable for work as a building estimator given his lack of training and physical restrictions.
281 Whilst the plaintiff has difficulty with prolonged standing and heavy lifting, in my view, he has the capacity for light work in sales in the plumbing industry and light physical work in the car industry.
282 Initially in cross-examination, the plaintiff described his job at Bursons as a light picking type role with products weighing under 5 kilograms and being handled by sales representatives one piece at a time. He agreed he could have been trained up to sell those parts. Only later in his evidence, he added that the job also involved heavier weights and he had been knocked back for a job there on the basis of his physical capacity. As the plaintiff admitted, there are multiple spare parts shops in Shepparton.
283 The plaintiff also agreed he could train up to selling plumbing supplies but he had taken no steps in this regard but could possibly do so in the future. This would be a suitable role for him, dealing with lighter plumbing supplies, given his experience in the plumbing area.
284 Whilst the plaintiff is not a qualified motor mechanic, he clearly has an aptitude working with cars and he would have some capacity to work in a lighter role in the car industry. The plaintiff agreed he was equipped to do that sort of work because he had been doing it for some time and had an interest in it.
285 I do not accept the plaintiff’s evidence as to the level of his involvement working on his cars in recent times. I am not satisfied that he has not undertaken rebuilds or undertaken stripping of his vehicles.
286 In all the circumstances, I am not satisfied that for the foreseeable future the plaintiff will suffer a loss of earning capacity of at least forty per cent. The heavy onus on the plaintiff in this regard has not been discharged.
287 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
288 Neither Dr Ekanayake nor Mr Brighton-Knight have expressed any concern about the plaintiff’s capacity to undertake retraining – both having supported such a course. The plaintiff, however, has not done anything in this regard, despite advice from Dr Ekanayake.
289 The plaintiff has shown an ability to undertake practical and theoretical training during his four year plumbing apprenticeship.
290 Whilst the plaintiff has expressed an interest in youth work, he has taken only limited steps to try and get work in this field, explaining that he would prefer work experience first. Further, he knows there is funding available if he wants to do any retraining. This avenue clearly has not been exhausted, nor has any other retraining been sought or pursued by the plaintiff.
291 Looking at the medical evidence overall, I am not persuaded the plaintiff has discharged the onus placed on him by ss(g), I accept he is permanently incapacitated for work as a plumber and other heavy manual work; however, this does not amount to a permanent loss of 40 per cent or more capacity for suitable employment.
292 The plaintiff has therefore failed to discharge the onus with respect to establishing the requisite loss of earning capacity.
293 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering. The application for leave to bring proceedings for damages for pecuniary loss is dismissed.
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