Robertson v Victorian WorkCover Authority
[2012] VCC 941
•15 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT Bendigo
CIVIL DIVISION
Case No. CI-11-04726
| TROY ANTHONY ROBERTSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 April 2012 | |
DATE OF JUDGMENT: | 15 June 2012 | |
CASE MAY BE CITED AS: | Robertson v Victorian WorkCover Authority & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 941 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Section 134AB Accident Compensation Act 1985 – Pain and suffering and economic loss – Back injury – Causation an issue.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.J.N. Purcell | Arnold Dallas & McPerson |
| For the Defendant | Mr A.J. Moulds S.C. with | Hall & Wilcox |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the defendant on 15 April 2008. The impairment of body function relied upon is the lower back and leave is sought in relation to both pain and suffering and loss of earning capacity.
2 The defendant does not dispute that the plaintiff suffered an injury to his lower back in April 2008. The main issue in this case is with whether or not this injury was caused by an incident at work. The defendant’s case is that the plaintiff suffered the injury when he was stealing a garden statue (“the statue”).
3 The defendant also disputes that the plaintiff should be granted leave to commence proceedings for pain and suffering and loss of earning capacity on the basis that nether of these consequences are serious within the definition in the Act.
4 The plaintiff was the only witness called to give evidence and be cross-examined. As is usual in these cases, the parties otherwise relied upon reports and documents contained in their respective court books and on material added to the court books during the running (hearing) of the matter.
Background
5 The plaintiff’s background history and details of how he allegedly acquired his back injury were provided in his affidavit of 24 May 2011 (PCB p. 17). The plaintiff is 35 years of age and was born on 21 July 1975. He is married and has three children. After completing Year 10 at school, he then worked as a bakery hand for 12 months. He has also worked as a dishwasher at a restaurant for 12 months, as a process worker for 18 months and then for some 6 and a half years as a machine operator at a brick company.
6 The plaintiff commenced work with the defendant on 8 October 2007. When he first started work for the defendant, his duties comprised of fettling using a pedestal mantle grinder to grind metal parts to make them smooth. Another task was called “the knock”, which involved using hammers to knock pieces of metal off moulds. Some of the pieces could be knocked off with a small hammer, and others required a sledgehammer.
7 The sledgehammer had a bigger and heavier head on it than a normal domestic sledgehammer. It was both heavy to lift and use. In his affidavit, the plaintiff stated that on 15 April 2008:
“whilst I was being trained to do the “knock duties”, I suffered an injury to my back while using the heavy sledgehammer. As I brought the hammer down, I felt a pinch in my back. The pain worsened”.
8 However, in his WorkCover claim form of 1 May 2008, the plaintiff’s description of the incident was that he “bent over to pick up metal after hitting it with sledgehammer”. When he was cross-examined about the inconsistency in the descriptions of the incidents, the plaintiff’s explanation was that when he hit the metal he had back pain and when he bent over “that’s when he really felt it” (transcript p. 34).
9 In his affidavit, the plaintiff stated that he continued to work, but had physiotherapy treatment which was arranged by his employer. However, when he was cross-examined, the plaintiff’s evidence was that after the incident he went down to the office and filled out an incident report. Helen (the first aid officer) told him that he had to go and see someone for his back pain. She also arranged for him to go back to work on light duties (transcript p. 35).
10 The plaintiff was on and off work throughout 2008, from that time on engaging in a graduated return to work program, and ultimately progressing to generally working full-time hours but on restricted duties. However, on 3 November 2008, he ceased work because he could not cope due to the pain levels and he has not worked since then (affidavit of 24 May 2011, at para. 5).
Treatment
11 Prior to ceasing work, the plaintiff was referred to an orthopaedic surgeon, Mr Travis Perera, who recommenced conservative treatment. As his symptoms did not improve, the plaintiff had an MRI in January 2009, which revealed a:
“posterior annular tear associated with a moderate L4/5 left paracentral broad-based disc herniation narrows the left lateral recess, encroaching upon the descending left L5 nerve root. at his L4-5 level” (PCB p. 31).
12 A steroid injection was attempted to alleviate his pain, but this did not help much and on 7 April 2009 Mr Damien Tange performed an L4-5 microdiscectomy and decompression of the left L5 nerve root.
13 After surgery, the plaintiff received physiotherapy and hydrotherapy as well as medication. However, he continued to suffer from daily back pain. In late 2010, he commenced a retraining program at Eaglehawk Training Station studying mathematics, English, reading, writing and computers. He discontinued the course due to family issues but was due to recommence it after the hearing.
Theft of the statue
14 The plaintiff’s affidavit contains no history with respect to the theft of the statue which took place shortly before his alleged injury at work. The history the plaintiff provided when giving evidence was that the statue was in a shop called Better Gardens. Prior to the theft, the plaintiff had visited Better Gardens together with his wife and she had told him that she liked a particular garden statue (transcript p. 20).
15 The top part of this statue was cupid sitting on a round ball which rested on a pedestal. Both the cupid sitting on the ball and the pedestal were made of cement. The statue weighed 40 to 50 kilograms and the pedestal slightly less. While, at various times throughout the hearing, the statue has been described as being a garden gnome, it is clearly not a gnome (see photos below).
16 On or about 10-11 April 2008, on a Friday night (just before midnight), prior to the incident at work, the plaintiff broke into Better Gardens by cutting a hole in the cyclone fence surrounding the business with a pair of pliers.
17 The statue was situated about a metre in from the fence and the plaintiff took the top part of the statue (cupid on the ball) “by leaning it onto the bottom piece and then rolling it out”. The plaintiff said that he “just grabbed it by the wings and just rolled it out and then leant it up against the car, and then just wheeled it into the backseat” (transcript pp. 21-22).
18 While he agreed with counsel for the defendant, that it was heavy and that he was “keen to get the job before anyone saw him”, the plaintiff denied that it was difficult to roll. He said, “once you get it into a leaning, then you can just roll it out” (transcript p. 23).
19 When it was put to him that it would be difficult to manoeuvre the statue through the fence, the plaintiff’s evidence was that the fence “was cut right to the bottom” so that it wasn’t hard to get the statue through. The plaintiff believed that the top half of the statue was easier to get than the bottom half and he described “flopping the bottom piece over” (transcript p. 24).
20 The plaintiff agreed with counsel for the defendant, that he had to lift the top part of statue to get it into the back seat of the car. He described using the top half of the head, lifting it up and “just flopping” it in (transcript p. 25). Then he had to go back and get the pedestal, which he described as being smaller and lighter (30 to 40 kilograms) than the top half. He said that he “just hopped it along” and lifted it into the back seat of the car” (transcript pp. 25 – 26).
21 The plaintiff then drove back to his house with the statue. When he got home, he lifted the two pieces of the statue out of the car and put them onto a trolley jack which he had placed next to the car. He could not recall what his wife said when she came out on Saturday morning and saw the statue sitting in their driveway. He claimed that he “just told her” that he had brought it (transcript p. 31).
22 Within the next couple of days, the statue was placed under the house. It was there for a couple of months until the plaintiff’s wife found a spot for it. Then, together with her step-daughter, she put it in the garden (transcript pp. 29-31).
23 The plaintiff could not recall what he did for the rest of the weekend after stealing the statue. However, he thought that he probably did the normal household duties, including mowing the lawns which he did “every Saturday, Sunday”. He believed that he put in a full days work on Monday 14 April from 5:51am until 4:30 pm (the work records confirm this) (transcript p. 31).
24 It was on the Tuesday (15 April), at about 7:30am-9:00am, that the plaintiff suffered some pain in his back at work when he was swinging an industrial sledge hammer. This is the incident referred to in paragraph 7 herein that he relies as being the cause of his back injury.
Medical opinion relied on by plaintiff
25 The plaintiff relies on the following medical opinions and radiology results as being consistent with the injury to the his back happening at work and with such injury being “serious” within the definition contained in the Act.
i) Radiology reports
26 The conclusion in the CT report of the lumbar spine, performed on 30 June 2008 (PCB p. 24), was “small L4/5 posterior disc protrusion, causing mild canal narrowing and possible mild impingement of the emerging left L5 root”.
27 The conclusion in the report on the CT of the lumbar spine of 25 November 2008 (PCB p. 28) was:
“At L4/5 there is a moderate sized posterior-left lateral disc protrusion indenting the theca and probably affecting the left L5 root. It appears marginally larger than in the previous examination of June. No disc protrusion or stenosis can be seen elsewhere nor other abnormality”
28 The conclusion in the report of the MRI of the lumbar sacral spine performed on 7 January 2009 (PCB p. 31) was:
“A posterior annular tear associated with a moderate sized L4/5 left paracentral broad based disc herniniation narrows the left lateral recess, encroaching upon the descending left L5 nerve root. No significant central canal stenosis”.
ii) Medical experts who had no history of the theft of the statute
Mr Brad Murphy – Physiotherapist (Report of 5 May 2010)
29 Mr Murphy reported that he first saw the plaintiff on 29 April 2008 when he presented with back pain that had been present for a week but did not remember doing anything that would cause the pain and he thought it was just a “chill”.
30 Mr Murphy’s provisional diagnosis was acute muscle spasm. With treatment, the plaintiff seemed to improve. He provided the plaintiff with treatment on two other occasions in May 2008 and had not seen him since he referred him to the Control Centre in Bendigo to undertake Clinical Pilates.
Ms Kirrily Careedy – Physiotherapist (Report of 29 May 2008)
31 The plaintiff was referred to Ms Careedy by Mr Murphy for a back strengthening program following a work related low back injury. The mechanism of injury was described to her as “forceful flexion/left rotation while using a sledgehammer”.
32 She provided him with various exercises to assist in his rehabilitation and return to work
33 In her report on his progress on 19 December 2008 (PCB p. 29), Ms Careedy stated that there were “numerous yellow flags” in regard to the plaintiff’s presentation which placed him at high risk of prolonged recovery from injury. These “yellow flags” included strong pain-focus and fear-avoidant behaviour, poor comprehension and haphazard application of self-management concepts, his wife’s (Karen) involvement which was often counterproductive, multiple re-aggravations, failed RTW programs and co-morbidities.
Mr Travis Perera – Orthopaedic Surgeon (Report of 11 August 2010)
34 Mr Perera received a history from the plaintiff that, about 13 weeks ago, he was “swinging a sledgehammer, knocking slag off a mould made of steel” and that he was about half an hour into doing this activity, when he had “felt a twinge in his back”.
35 His diagnoses was a “posterior annular tear of L4/5 disc with an associate moderate L4/5 left paracentral broad based disc herniation which was causing some narrowing of the lateral recess at this level and encroaching upon the descending left L5 nerve root.
Dr Damien Tange – Neurosurgeon (Report of 7 April 2009)
36 Dr Tange reported that the plaintiff was admitted to the Melbourne Private Hospital where he underwent a routine right-sided L4/5 microdiscectomy and decompression of his L5 nerve root. (operation note to Chris Daw of 7 April 2009, PCB p. 33).
37 He advised that the surgery had “achieved its desired end result” which was to prevent leg pain. The plaintiff now needed to start work and try to improve his back discomfort via an exercise program. However, he should not go back to any heavy manual work (updated report of 12 May 2010, PCB p. 33).
Mr Peter Kudelka – Orthopaedic Surgeon (Report 9 December 2008)
38 Mr Kudelka diagnosed the plaintiff as having an L4/5 disc injury with sciatica. In his opinion, the condition had not resolved and it still materially contributed to the plaintiff’s reduced capacity for work and the need for treatment services.
39 He was of the opinion that the plaintiff had no current work capacity and was not fit for his pre-injury duties but that he might become so after spinal surgery and an appropriate convalescent period of probably three to six months. However, he strongly advised that the plaintiff changed his occupation “altogether to less physically demanding work”.
Dr Chris Daw – General Practitioner (Report of 8 June 2010)
40 Dr Daw reported that the plaintiff was first seen at the clinic by Dr Nerida Kelly when he “described pain for three weeks, worse in the last five days after feeling a twinge when doing heavy lifting at work, lifting heavy metal and using a sledge hammer. He had seen a physio several times and had x-rays after seeing the Primary Care Clinic”.
41 He diagnoses was that the plaintiff had suffered a posterior annular tear with L4/5 disc herniation. The prognosis was that the plaintiff’s injury would preclude him from returning to any heavy manual work. While the plaintiff’s chronic back pain might improve in the future “given the history so far it was likely to persist for some time”, he would require retraining for lighter, non-lifting work.
42 Dr Daw’s after surgery diagnosis was “L4/5 disc herniation with surgical treatment of microdiscectomy with subsequent chronic back pain. The prognosis at this point was for continued chronic back pain for foreseeable future”.(report of 27 August 2010, PCB p. 47).
Mr Peter Scott – Consultant Surgeon (Report of 21 February 2011)
43 Mr Scott diagnosed the plaintiff’s spinal condition as being “one of chronic low back pain, discogenic lesion of the lumbarsacral spine causing left-sided sciatica which has been adequately treated”.
44 Mr Scott reported that the plaintiff had denied having any trouble with his back until 15 April 2008 when “using a sledge hammer on a repetitive basis, he developed quite severe back pain and some left leg pain.”
iii) Medical Experts who received a history of the theft of the statute
Mr Thomas Kossmann – Orthopaedic Surgeon (Report of 27 March 2010)
45 In his report of 27 March 2012 (PCB p. 50), Mr Kossmann advised the plaintiff’s solicitors that the plaintiff had told him that he was working with an industrial sledgehammer on 15 April 2008 when he began to “experience stabbing pain in his lumbar spine”.
46 The plaintiff’s solicitors gave Mr Kossmann the following history of the theft of the statue:
“approximately four days before the onset of Mr Robertson’s lumbar spine condition he was involved in transporting a garden gnome (the statue of cupid). The garden gnome was made of two pieces. The top part weighing approximately 40-50kg and the bottom part 30-40kg, which Mr Robertson apparently rolled to the car and then lifted into the boot” (report p. 4).
47 Mr Kossmann reported that the plaintiff told him that he did not experience any back pain while he was transporting the statue and that he injured his back on 15 April 2008. In Mr Kossmann’s opinion, there was:
“a possibility that Mr Robertson may have injured his lumbar spine whilst he was transporting the gnome, which was heavy even though it could be divided into two parts. Sometimes back injuries happen days before the actual onset and insignificant axial stress, bending or twisting, can then trigger a disc prolapse as seen in Mr Robertson’s case” (report p. 4).
48 While Mr Kossmann could not “exclude 100 per cent” that the plaintiff had not injured his lumbar spine during the alleged theft, there was also a possibility that he had not suffered any injury during the alleged theft and that he had then suffered a genuine injury on 15 April 2008.
49 Mr Kossmann “tended to believe” that the plaintiff injured his lumbar spine on 15 April 2008 in the work related accident. In coming to this conclusion, he took into account that after the theft on 11 April 2008, the plaintiff had not sought any medical attention for his lumbar spine condition. In contrast, the plaintiff “was seeking medical attention” after the injury he suffered on 15 April 2008.
50 Mr Kossmann’s opinion as to the plaintiff’s work capacity was that he had a work capacity for light duties and that he should undergo a vocational assessment to qualify for such work. He should be able to work with restrictions regarding weight lifting (no more than 10kg) and bending and twisting his body. There were no restrictions regarding the working time.
51 However, Mr Kossmann’s prognosis for the future was pessimistic as, in his opinion, the plaintiff would “suffer from back pain for the rest of his life. In addition, there was a chance that he may have a recurrent disc prolapse at some stage in his life”.
Professor Peter Disler (Report of 10 April 2012)
52 Professor Disler reported, on 10 April 2010 (PCB p. 56), that he had received a history from the plaintiff that on 15 April 2008, “while doing ‘the knock’ he developed pain in his lower back slightly to the left mid line which extended into the buttocks and down the left side of his leg as far as the toes” (report 10 April 2010, p. 1).
53 Professor Disler specifically discussed the issue of the stolen statue with the plaintiff, whom he described as being:
“quite open about the fact that he had stolen this rather heavy garden gnome on about 11 April 2008 (only a few days before the claimed injury). He said he had rolled it over to the car and only lifted it up into the car boot. He said that he had no pain either before or after the event”.
54 Professor Disler diagnosed ‘lumbarsacral dysfunction secondary to surgically treated disc degeneration relevant to the claimed injury.” Given the heavy nature of the plaintiff’s work and the acute onset of his pain, he believed that the plaintiff’s back injury was related to the employment that he was undertaking.
55 Professor Disler concurred with Mr Kossmann’s prognosis that it was likely that the plaintiff’s back pain would continue in “the long term future”. However, with regard to the plaintiff’s work capacity, he differed from Mr Kossmann in that he concluded that the plaintiff had “no capacity for his previous employment or alternative employment that matched his physical limitations with his education, training and vocational experience”.
Defendant’s medical reports and radiology
56 The defendant relies on the following radiology and medical reports in support of their case that the plaintiff’s injury is not work related. If such injury is found to be work related, the reports and radiology are relied upon as establishing that the injury is not serious within the definition contained in the Act.
i) Radiology
57 The conclusion in the report of the CT of the Lumbar spine of 9 November 2011: “Equivocal evidence of previous L4/5 disc surgery but no acute complication is shown”.
Medical opinion relied on by the defendant
(1) The Primary Care Clinic notes (DCB pp. 41-44)
58 As they reveal, on Monday 28 April 2008, the plaintiff attended a surgery consultation with Dr Sajjad Ashraf Muhummad, who:
- found that he was tender at the left S1 joint at L4/5 and that he had a sore little right toe.
- reported receiving a history from the plaintiff of lower back pain that started three days ago with no lifting or any injury. The plaintiff described the pain as feeling like “a chill at the back”.
(2) The report (dated 5 May 2010) and notes (at DCB pp. 78-99) of Mr Brad Murphy
59 In so far as they revealed that when the plaintiff presented to Mr Murphy with lumbar spine pain on 29 April 2008 , which had been present for a week:
- he made no reference to an incident at work as causing his pain.
- he did not remember doing anything that would cause the pain and thought it was” just a chill”.
(3) The reports (8 June 2010 and undated) of Dr Chris Daw and notes from the Bendigo Community Health Services (DCB p. 50)
60 In so far as they revealed that when the plaintiff saw Dr Nerida Kelly on 1 May 2008, this was the first time there was mention of an incident at work being responsible for his back pain.
61 The notes include, inter alia, the following history:
“Presents with back pain happened three weeks ago, has put up with it. Pain worsening over past 5 days. Pt thought he had a chill in the back, but it did’nt go away after a day or two. Felt a twinge when lifting heavy goods at work. . Believes it happened at work. Works as a labourer-lifts heavy metal, and uses sledge hammer “
Case for defendant in relation to causation
62 The primary matters relied on, in support of the defendant’s case, that I could not be satisfied on the balance of probabilities that the plaintiff’s injury was caused by his work for the defendant on 15 April 2008, are as follows:
· that the plaintiff’s description of the accident at work in his affidavit (see paragraph 7 herein) differed from that in his WorkCover claim (PCB p. 60);
· that the plaintiff’s evidence that “he did not keep working that day but went down to the office where he filled out an incident report and was told by Helen (the lady in first aid) to see someone for his back pain” (transcript p. 36) was inconsistent with his affidavit;
· the plaintiff’s failure to mention the work incident to Dr Mohammad and Mr Murphy as being the possible cause of his back pain in February 2008 (supported by the contemporaneous records from the Primary Care Clinic and the Bendigo Community Health Service);
· the plaintiff’s credit and the theft of the heavy statue just days before the claimed incident at work.
63 In his closing address, counsel for the defendant submitted somewhat colourfully that:
“when you go back over the contemporaneous material later about the time you are going to find holes in it. The devil will be in the detail. And when you go back over the detail, it doesn’t stack up. In my respectful submission, one would need a degree of contemporaneous consistency in the evidence of the plaintiff in these circumstances to make the leap and say, I am satisfied that this heavy work is the cause of this man’s injury and not something which happened about three or four days beforehand”.
64 With respect to the plaintiff’s credit, while it was not put to him directly that his WorkCover claim was fraudulent, it was put that the reason he had not mentioned activity at work as being the cause of his back pain to either Dr Mohammed or Mr Murphy, was because he knew it was likely to be the statue and the pedestal.
65 In addition, he was cross-examined about stealing other things in the past and admitted to (when he was a teenager) the theft of dog collars from vans, two incidents where he had stolen mirrors from cars (in his twenties) and another incident in May 2000 where he stole some razor blades from a shop (transcript at pp. 40-41).
66 In his closing address, counsel for the defendant also submitted that if the VWA had known about the theft of the statue and the notes from the Primary Care Clinic, Mr Murphy and the Bendigo Community Health Service, they would not have accepted the plaintiff’s claim (pursuant to s. 109 of the Act) on 9 May 2008. In support of this submission, counsel relied on the affidavit of Peter White, the Senior Legal Manager of Gallagher Bassett Services Workers’ Compensation (DCB pp. 1-3).
Case for the plaintiff in relation to causation
67 In his closing address, counsel for the plaintiff submitted that the case was “really being fought by the defendant on the basis of credit”. Not to be outdone by counsel for the defendant, he submitted that, in so far as the plaintiff had put his credit in issue by stealing the statue, it was “not a killer point in the case” and did not necessarily mean that the evidence the plaintiff gave in the witness box was not credible evidence.
68 In this respect, counsel relied on Cakir v Arnott’s Biscuits [2007] VSCA 104 as establishing that where there was an adverse finding on the plaintiff’s credit in determining the cause and seriousness of the injury it was necessary look at all of the evidence in the case (see transcript pp. 75-76).
69 The evidence relied on, in particular, as supporting the plaintiff’s claim that his back injury was caused by the incident at work on 15 April 2008 included that:
· there was no evidence of the plaintiff having had any problems in his back before 15 April 2008;
· the plaintiff had given sworn evidence that he did not suffer any injury when he was taking the statute;
· the plaintiff worked his normal hours on 18 April through to 25 April 2008 (see wage records at pp. 80 and 81 of the DCB) and then his hours were reduced;
· all of the medical experts who examined the plaintiff were content that the type of injury he presented with was consistent with the nature of his duties at work;
· the defendant had accepted the plaintiff’s claim pursuant to s. 109 of the Act and made payments for two and a half years, including medical expenses;
· when Mr White swore his affidavit, on 5 January 2009, the claim agents had statements regarding the theft. However, they had not stopped the payments then or issued the plaintiff with a notice terminating the claim;
· that Mr Kossmann and Professor Disler had the history of the theft of the statute and accepted that the plaintiff’s injury occurred at work; and
· that the defendant had not put the history regarding the theft of the statue to any of the doctors they had examine the plaintiff.
70 Counsel for the plaintiff also submitted that, on the whole, when reporting and seeing doctors and giving histories, the plaintiff had given a fairly consistent history of doing something associated with sledgehammer work. In addition, that the plaintiff was an unsophisticated man who did not have the intellectual skills and ability to fraudulently construct a WorkCover claim.
Finding in relation to causation
71 The first issue I have to determine is whether, on the balance of probabilities, the plaintiff suffered the injury to his lumbar spine on or about 15 April 2008 while using the sledge hammer at work.
72 In Cakir v Arnott’s Biscuits, her Honour Neave JA said in para 49 that:
“[49] However, even if the appellant deliberately denied that he had previously suffered from back problems, an adverse finding on the appellant’s credibility did not, in my view, justify refusal of the. appellant’s application. In order to conclude that the appellant was not entitled to leave to commence common law proceedings it was necessary for his Honour to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the appellant’s injury. That evidence is set out above. It includes the circumstances in which the injury was reported, the appellant’s physical condition before and after the accident, evidence as to the cause of the appellant’s pain provided by diagnostic tests and the opinions expressed by the appellant’s treating doctors and the other experts.”
73 After taking into account all relevant matters referred to above in Cakir v Arnott’s Biscuits, I am satisfied that the plaintiff has established, on the balance of probabilities, that he injured his lumbar spine in the incident at work on 15 February 2008. In reaching this decision, I have accepted both the plaintiff’s evidence about the incident at work and about how he went about stealing the statue.
74 The plaintiff gave convincing evidence as to how he managed the theft of the top half of the statue by grabbing it by the wings and wheeling/rolling it out to the car (transcript p. 23). With the pedestal, essentially, he “hopped it along and lifted it into the car” (transcript p. 26). I accept his denial that he suffered any back pain during this procedure or over the weekend.
75 There was no evidence called to contradict him about this. Most importantly, the defendant’s records reveal that on Monday 14 April 2008, the plaintiff worked a normal days work from 5.51am until 4.30pm. The fact that the plaintiff was able to work a full day in a labouring job, provides support for his claim that he suffered no injury to his back over the weekend.
76 In addition, as did Mr Kossmann, I have taken into account that the plaintiff did not seek any medical attention for back pain until after the claimed incident at work on 15 April 2008. If the plaintiff had suffered back pain during the theft of the statue on Friday night or over that weekend, he could have sought medical attention without disclosing the theft.
77 However, the history of the plaintiff seeking medical attention for his back is that he did not do so, until he saw Dr Mohammed on 28 April 2008 and Mr Murphy for physiotherapy the following day on 29 April 2008. Then, on 1 May 2008, Dr Kelly at the Bendigo Community Health Service.
78 While the plaintiff failed to mention the incident at work as being a possible cause of his back pain to either Dr Mohammed or Mr Murphy, I do not accept that this was because he knew it was likely that the injury happened when he took the statue. As I mentioned above, if the plaintiff had thought that moving the statue was the cause of his back pain, he could have informed the doctors about moving it without revealing that he had stolen it.
79 Although the plaintiff’s evidence was that he was positive that he told Mr Murphy about the incident at work, this is not recorded in Mr Murphy’s notes. I accept that the plaintiff told neither Dr Mohammed or Mr Murphy about the incident at work and that he first mentioned the work incident to Dr Kelly on 1 May 2008.
80 However, the plaintiff’s failure to mention the work incident earlier does not mean that it did not happen. Such failure is also consistent with the plaintiff failing to make a connection between the incident at work and his back injury until the pain became worst. In this regard, I note that when he saw both Dr Mohammed and Mr Murphy, he described feeling a chill in his back.
81 By the time the plaintiff saw Dr Kelly on 1 May 2008 (although once again he initially thought it was a chill in his back), the plaintiff had been suffering worsening back pain for 5 days. It appears that it was only then that the plaintiff made a connection with his work three weeks earlier, albeit the lifting aspect rather than the sledgehammer.
82 With respect to the defendant’s submission, that the description of the incident at work in plaintiff’s affidavit is inconsistent with his claim form, I consider that any such inconsistency is not significant. In both his affidavit and the claim form, the plaintiff mentions hitting the metal with the sledgehammer. The difference being that, in the affidavit, he mentions feeling a pinch in his lower back as he brought the hammer down, while in the claim form he refers to pain (“a twinge”) when after hitting the metal with the sledge hammer he bent to pick it up.
83 There is controversy as to whether or not the defendant would have made payments to the plaintiff, if they had known of the theft of the statute and the clinic notes. In reaching my decision, I have not taken into account the fact that the WorkCover payments claim was accepted by the defendant. This is because, irrespective of this fact, after considering all the other evidence in this case, I would have reached the same decision.
84 I find, on the balance of probabilities, that during the course of his employment with the defendant on 15 April 2008, the plaintiff suffered an injury to his lower back. I accept the opinion of the majority of medical experts which is supported by the radiology that this injury involved a posterior annular tear associated with a mode rate sized 4/5 left paracentral broad-based herniation narrowing of lateral recess encroaching upon the left L5 nerve root.
Serious injury
Pain and suffering
85 The plaintiff has constant low-back pain. It is sometimes better, sometimes worse, depending on what he does, but it is with him all of the time. He has right-leg numbness outside his right kneecap. The plaintiff attends Mr Daw every three to six months. He takes Nurofen plus and/or Panadol twice a day (transcript p. 9).
86 In his affidavit, the plaintiff described having the following symptoms:
· It was difficult to bend or twist.
· If he had to pick something off the floor, he squatted to do so.
· He can only walk for up to an hour, and this makes him tired and aggravates his back pain.
· He sleeps poorly, and often wakes with pain.
· His sex-life is dramatically reduced which has caused stress in his relationship.
· He tries to assist with the housework but has to be careful as to what he does.
· He has difficulty putting on socks and shoes.
· He cannot play with his children as he would like.
· He avoids gardening.
· He drives, but uses back support and if driving for any distance, stops after an hour to have a break.
· His concentration and memory are poor.
· He does not go out as much socially now, and has become withdrawn with his inactivity and pain.
· He finds that if he is sitting for 30 or 40 minutes he has to get up and move around as his pain gets worse.
87 With respect to the effect of the injury on his sporting activities, the plaintiff claims that he used to enjoy playing cricket (both indoor and outdoor) and baseball, but since injuring his back he has not played these sports. He used to enjoy ten-pin bowling but he avoids it now, as he finds it difficult to lift the ball.
88 Prior to his injury, the plaintiff had a particular interest in working on cars. He has a Ford and a Holden but since the accident he has done little work on the cars. When he was cross-examined about the last time he worked on the cars, his evidence was that:
· the last time he worked on the Holden was probably about a month ago for a couple of days to get it up to scratch to be registered. These were just fiddly things that had to be done for the Road Worthy test. Although the front wheels had to come off the car, he was assisted by a friend in doing this.
· with respect to the Falcon, the only work he had done was to fill up the oil.
89 The picture painted by the affidavit is of a man who experiences back pain on a daily basis and whose recreational sporting and social life has been considerably curtailed. The medical opinion is that he can not go back to his pre-injury heavy work. In order to succeed, the plaintiff must prove that the consequences emanating from the loss or impairment of the body function of his back are at least “very considerable” and “more than significant or marked”.
90 I have considered the consequences of his back injury to the plaintiff and compared the impairment arising from his injury with other cases in the range of possible impairments or losses of the body function of the back. I am satisfied that the function of his lower back is permanently impaired and that, with respect to pain and suffering, it can be described as being at least very considerable.
Loss of earning capacity
91 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, he has a permanent loss of earning capacity of 40 per cent or more (see s.134AB(38)(e)).
92 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical or mental capacity for suitable employment after the injury and his attempts to participate in rehabilitation or retraining, he has a capacity for any employment which, if exercised, would result in his earning more than 60 per cent of his pre-injury earnings, as determined in accordance with paragraph (f) of s. 134AB(8) of the Act.
93 The plaintiff’s case is that he presently has no capacity for suitable employment and that he will continue, permanently, to have a loss of earning capacity which will be productive of a financial loss of forty per cent or more. Although he is doing an adult literacy course, it was submitted that knowing his work history and seeing him in the witness box, I might reasonably form the view that there is no retraining that would get him to work in the types of jobs that have been suggested by the defendant
94 Although it is conceded that he can no longer do his pre-injury heavy work (this is the majority medical opinion), the defendant’s case is that the plaintiff is capable of alternative light work. In relation to his work capacity, the defendant relies, in particular, on Mr Kossmann’s opinion that the plaintiff has a capacity to do light work.
95 In addition, the defendant relies on the Work Options’ vocational assessment reports of 30 September 2009 and 12 April 2012. These reports concluded that, based on the plaintiff’s employment history and transferable skills, the following were considered to be suitable employment options: post office or retail sales ($840.00 per week), sales/customer service ($740 per week), spare-parts salesman ($900 per week) and instrument technician ($950 per week).
96 While there was no precise evidence presented as to what the plaintiff would be likely to earn but for the injury, however the plaintiff’s pre-injury income was approximately $800 a week. It was agreed that if the plaintiff was found to be capable of performing full-time light work, such in the jobs referred to above, then he would be earning more than 60 per cent of his pre-injury earnings.
97 However, when the plaintiff was cross-examined about these various job options and others, such as working in a video store or as a service station attendant, his evidence was that he could not do these jobs at the present time because of his back. His evidence was that, in his current condition, he could not do a job which required him to sit for prolonged periods or to stand for prolonged periods or that involved any lifting or bending (transcript pp. 53-54). Although he had used a computer for games, he had never had a job where he had to use a computer for work. When he was asked if he used a computer to help his 13 year old daughter with her homework, his reply was “no because she’s a lot smarter than me”.
98 While Professor Kossmann, Mr Daw and Mr Kudelta were of the opinion that with retraining, the plaintiff could in time return to light work, I consider that Professor Disler took a more realistic approach to the plaintiff’s work capacity, when on the last page of his report he commented as follows:
“I believe that your client, having had back surgery with limited residual back function, has no capacity for heavy labouring work at the present time or in the future. On the other hand, notwithstanding the fact that he is only 36, he is able to drive and lives in Bendigo (where there is possible employment available), Mr Robertson has very poor reading and writing skills, no retail experience and even though he is now learning to use a computer, it will take him a long time to develop the skills the majority of school leavers have today. He thus has little capacity for clerical or other sedentary type occupations. I therefore concluded that Mr Robertson has no capacity at all for his previous employment, or alternative employment that matches his physical limitations, with his education ,training and vocational experience”.
99 In Ms Careedy’s report, back in June 2010 (see paragraph herein), she highlighted a number of yellow flags with respect to the plaintiff’s ability to successfully return to work. I will not repeat all of these concerns again, but I consider that, in particular, her finding that the plaintiff had “poor comprehension and a haphazard appreciation of self management concepts” is supportive of a finding that he has no work capacity.
100 I am satisfied that the plaintiff has no work capacity. I consider that with his previous work history, his general low level of intelligence and the physical restrictions on him due to his lower back injury combined with the fact that he has never done any clerical work that in reality his work capacity is nil.
Conclusion
101 I grant leave for the plaintiff to bring a proceeding at common law, pursuant to s. 134AB of the Accident Compensation Act 1985, to recover damages for pain and suffering.
102 I grant leave for the plaintiff to bring proceedings at common law, pursuant to s. 134 AB of the Accident Compensation Act 1985, to recover damages for economic loss.
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