Rowe v Mars Australia Pty Ltd

[2010] VCC 385

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-00680

Phillip Rowe	Plaintiff
v
Mars Australia Pty Ltd.	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 May 2010
DATE OF JUDGMENT:	14 May 2010
CASE MAY BE CITED AS:	Rowe v Mars Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0385

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious injury application – Accident Compensation Act 1985 – s134AB(16)(b) – Permanent serious impairment or loss of a body function – Injury to the lumbar spine – Pain and suffering – Loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Mighell S.C.	Maurice Blackburn
with Mr G. Coldwell
For the Defendant	Mr D. Myers	DLA Phillips Fox
with Mr I. Gourlay
HER HONOUR:

1 The 52 year-old plaintiff seeks leave to bring proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of an injury to the lumbar spine including injury at the L4-5 and L5-S1 level requiring surgery in the form of a spinal fusion which was sustained as a result of heavy, repetitive work during the course of his employment as a machine operator after October 1999 and including in or around April 2004. The application is brought under s.134AB of the Accident Compensation Act 1985 (‘the Act”).

2          The plaintiff says that in spite of undergoing a two-level lumbar fusion in March 2006, he has continued to suffer constant back pain and right leg pain, for which he takes Oxycontin, Topamax and Endep daily. The pain interferes with his sleep and with his daily activities. He can only sit, stand or walk for short periods. He cannot do any housework and cannot bend, lift or twist. His pain interferes with his ability to garden, fish, drive and socialise. He says he is permanently incapacitated for his pre-injury duties and that there is no other employment for which he is suited.

3          The defendant did not make any submissions contrary to the relief sought in terms of pain and suffering but says that in spite of the plaintiff’s presentation to most medical practitioners as an invalid, video surveillance taken in December 2007 and January 2008 shows he is able to move much more freely and suggests that he has a residual capacity for employment. The defendant says that the plaintiff has not discharged the onus he bears to demonstrate the extent of any residual work capacity.[1]

[1]            In this regard, counsel relied on the decision of His Honour Judge Misso in Anderson v Goulburn- Murray Rural Water Authority [2009] VCC 0993.

Plaintiff’s evidence

4          In his affidavit, the plaintiff said he has constant low back pain and some pain in his right leg. His back pain is made worse by twisting, lifting or prolonged sitting. He can no longer garden or do housework. His sleep is interrupted. He takes Oxycontin and Topamax daily for his back pain. Before his injury, he enjoyed his work as well as fishing in his boat and home brewing. He has sold his boat and no longer makes home brew. His social life and his relationship with his wife have suffered.

5          At the hearing he said he takes 2-3 Oxycontin (10mg) tablets daily, as well as Topamax, Deralin and Endep, all for his back pain. He continues to see his treating general practitioner, Dr Ward, who continues to provide him with certificates of total incapacity. He sees his treating pain specialist, Dr Thomas, every few months, and is regularly reviewed by his orthopaedic surgeon, Mr Carey. He said that the surgery did not substantially alleviate his back pain, which is constant. When it is very severe, which happens a few times a day, he lies down or uses a special chair. He said that he has never held a forklift licence, nor any certificates in Business Studies. He has no experience in electronic assembly work or in sales. He has never worked with money or operated an electronic cash register. He does not know what Microsoft Excel is. In the past two years, he has rung two employment agencies and asked about his work prospects, but was told they would not take him on because they do not believe he would be able to attend work reliably.

6          In cross-examination, he agreed that prior to his surgery he did light duties at work and was sometimes required to do normal duties but did not think he worked 30 hours per week. He said that after surgery his leg pain abated for a few weeks. He said that after his surgery he told his employer he wanted to return to work but was told there were no suitable positions. He said that in early 2008 he asked them to be retrained so that he could do office duties, but was then sacked.

7          He agreed that in early 2008 when assessed by Konekt he may have presented as reported by the assessor, but said he does have his really bad days. He agreed that when he has chronic back pain he sometimes walks stooped and shuffles. He agreed that on a good day he was capable of bending to the ground as shown in the video surveillance material shown in court, and that he was not stooped or shuffling, but did not agree that he was walking normally. He agreed that the footage showed him lifting boxes out of the car, but said they contained empty bottles. He agreed that the footage showed him lifting a bag of onions but said that it weighed only 6.5 kgs and he was able to lift it because it was at waist height.

8          He agreed that he now walked a bit further than he used to, but said he does not lift more than 7 kgs and needs help each day to put his shoes and socks on and to get in and out of the bath.

9          In re-examination, he said that Konekt did not identify any suitable employment options for him nor send him to any interviews, and that although the defendant employs around 350 people in the factory and has an office on site, he has not been offered any work there since his surgery. He was not offered any retraining. He said that, but for his back injury, he would like to work. He has a mortgage and is on disability support benefits and felt upset that he can no longer work. He said that he was aware that he was being filmed at least every six weeks in the past six months.

Medical Evidence –treating doctors

10        Dr Ward has been the plaintiff’s general practitioner since 2003. He reported in November 2005 that the plaintiff had suffered an L5/S1 disc bulge, worse on the right, and that he was participating in a light duties program.[2] In April 2007, he reported that although the fusion surgery was technically successful, the plaintiff “was never happy with his progress”.[3] He had a fall at home in October 2006 and sustained a fracture to the L1 vertebrae which healed. However, by November 2006 he was not managing his back pain and was on a high dose of narcotic analgesics, wearing a brace and unable to climb stairs or sit for more than a few minutes. In May 2008, he reported that the plaintiff continued to be totally incapacitated for employment due to his pain and mobility issues. On 25 June 2009, he reported that although the plaintiff had been successful in limiting his use of opiate medication, his mobility had suffered. He did not feel the plaintiff would ever be able to return to work. On 5 March 2010, Dr Ward confirmed that the plaintiff continued to take medication but still had persistent back pain, and that at 52 years old with his bad back was unlikely to be employable in the future.

[2]             Plaintiff’s Court Book [“PCB”] p. 24-45.

[3]             PCB p. 26.

11        At the hearing, Dr Ward said that, leaving aside any psychological issues, the plaintiff was permanently incapacitated for all work due to his back injury, resulting pain, his age and work history. He said he was surprised to see the plaintiff move well and bend in the video surveillance material but the material did not disclose whether he was in pain at the time or how he pulled up afterwards. Also, some of the bending was with flexed knees. In any event, he said the footage was consistent with his presentation over the years to Dr Ward in that his condition fluctuated. For example, in December 2007, around the time of some surveillance, the plaintiff reported some improvement, and was reducing his medication. On the other hand, in January 2008, he presented with marked pain and sleep disturbance. On both occasions, Dr Ward prescribed Oxycontin. Sometimes he presented quite well, other times not. He regularly came to the rooms walking slowly, with an awkward gait, and stopped. He said that while he entertained the idea of the plaintiff doing light duties at Mars, none were offered, and now, in any event, he felt that the plaintiff was permanently unemployable.

12        Dr Ward disagreed with Mr Elsner’s comment that, based on the activities seen on the video surveillance material, the plaintiff was physically capable of working full-time provided he avoided lifting more than 10 kgs or bending. Dr Ward said he would not allow the plaintiff to lift 10 kgs, and felt that he would not be able to do any work 40 hours per week. He noted that even before surgery, the plaintiff was having trouble managing the light duties he was doing part-time and was certified unfit for work on a number of occasions, in particular for the entire period between February and late April 2005. Dr Ward felt that the plaintiff was a simple man of very limited education with poor cognitive function and would not interview well, and that in any event his back symptoms would make him unreliable as an employee.

13        Mr Chris Xenos, neurosurgeon, saw the plaintiff in 2004 on referral from Dr Ward and wrote to Dr Ward in September 2004 that the MRI of the lumbar spine showed a small paracentral disc bulge at L5/S1 that was possibly contacting the adjacent conjoined right L5 and S1 nerve roots. He suggested that if his condition did not improve, a focal epidural injection could be considered. In February 2005, Mr Xenos reported that the plaintiff had a normal gait and no evidence of L5 or S1 weakness but reported continued aching in the back of his right thigh and constant back pain. He recommended an epidural injection. In March 2005, he noted that after a nerve root sheath injection in February the plaintiff reported a reduction in pain down the right leg. He was optimistic that the plaintiff could return to work part time with restrictions.

14        Mr Roy Carey, orthopaedic surgeon, reported that in August 2004 he did not feel that the MRI finding of an L5-S1 protrusion “was concordant with his symptoms and physical signs”.[4] A further MRI was arranged in January 2006 and Mr Carey agreed with the conclusions reported. Mr Carey performed a discogram and then performed a spinal fusion. In May 2006 the plaintiff complained of ongoing pain, and in July 2006 he complained about severe leg pain. In July 2007 he reported that in March the plaintiff noted some improvement in his back pain and that he no longer had sciatica. Mr Carey felt the fusion was sound, and did not recommend any further active treatment. He suggested referral to Dr Thomas for pain management and rehabilitation. In October 2007, he reported that the plaintiff was permanently incapacitated for his pre-injury duties but felt that it was appropriate for him to be assessed by an expert to determine whether he has the capacity for suitable employment. He repeated this conclusion in his report dated 20 May 2008, when he noted that the plaintiff was still requiring significant medication and had been to see Dr Thomas. He concluded that the plaintiff “has always been a very pleasant and genuine witness to his symptoms, but unfortunately I have not been able to help him much with his fusion”.[5]

[4]             PCB p. 42.

[5]             PCB p. 61.

15        In September 2009, Mr Carey reported that when seen in July, the plaintiff reported ongoing back pain, walked with an antalgic gait, and demonstrated a “markedly restricted and irritable range of lumbar spine motion because of mid-lumbar back pain”.[6] He felt that the plaintiff still suffered from “considerable pain and disability related to the work injury”.[7] He repeated his conclusion that the plaintiff was physically able to do alternative duties but may need retraining for this purpose. He would permanently have restrictions in the range of motion and endurance of his lumbar spine and would require medication.

[6]             PCB p. 64.

[7]             PCB p. 65.

16        Dr Richard Clements, rehabilitation physician, saw the plaintiff in May 2005 on referral from Dr Ward. He recommended assessment by the Victorian Rehabilitation Centre, and felt it was reasonable that he be certified for light duties. However, funding for the assessment was not forthcoming, and Dr Clements did not see the plaintiff again.

Medico-legal reports

17        Mr John O’Brien, orthopaedic surgeon, provided a number of reports to the defendant. In June 2004 he diagnosed a work-related disc herniation at L5/S1 with nerve-root irritation and recommended ongoing conservative management. In July 2005 he noted there had been no improvement in the plaintiff’s symptoms but felt he could continue with modified duties part-time and should undergo a pain management program. In May 2009, he reported the plaintiff’s history of spinal fusion in 2006 with no substantial improvement in the severity of back and right leg pain. He noted substantial limitation of lumbar flexion. He felt that the plaintiff had a moderate disability as well as ongoing chronic pain which made him unfit for his pre-injury occupation. Although he had a physical capacity to undertake modified duties, Mr O’Brien felt that due to his severe chronic pain requiring significant analgesics it was extremely unlikely he would ever return to work.

18        Mr O’Brien viewed the surveillance material on 14 December 2007 and felt that the observed activity was contrary to his presentation in 2009. He felt that the surveillance material indicated a physical capacity to work in modified duties.

19        Mr Keith Elsner, orthopaedic surgeon, provided a number of reports to the defendant[8]. In June 2007 he noted that the plaintiff walked slowly with a mild right sided limp and demonstrated a reduced range of lumbar movements. The plaintiff told him the surgery significantly reduced his right leg pain and eased his back pain, which still woke him at night. He found no radiculopathy. He felt the plaintiff may be left with some residual lower back pain and was not fit for pre-injury employment but could work part-time 12 hours per week at bench height, mainly standing, but with the capacity to move around, but with no lifting more than 7 kgs. He felt there was a degree of “inappropriate illness behaviour superimposed on the organic injury” [9].

[8]             DCB p. 22-42

[9]             DCB p. 28

20        In early March 2008[10], Mr Elsner noted that the plaintiff initially walked slowly in a stooped fashion with bent knees but after the examination was able to stand straight and walk normally without a limp. He felt that the plaintiff’s condition had stabilised and that he was partially incapacitated for employment. In late March 2008[11], he reported on the contrast between the plaintiff’s presentation on examination with his activities on the two videos in December 2007[12] and January 2008[13]. Notwithstanding the lifting capacity he observed on the videos, Mr Elsner still felt he would be permanently unable to return to his pre-injury duties due to the condition of his lumbar spine. However, he felt that the plaintiff was fit for full time work that avoids regular lifting over 12 kgs and avoids rapid, repeated or prolonged waist level bending activities. He felt that he could undertake light delivery work, or assembly work, or sales work in a bakery. Based on his presentation on the video footage, he felt that the plaintiff does not require narcotic medication.

[10]           DCB p. 29-34

[11]           DCB p. 35-36

[12]           Exhibit 1

[13]           Exhibit 2

21        In April 2009, Mr Elsner noted “a significant discrepancy in the range of lumbar flexion on formal examination and with distraction, which would suggest to me some degree of embellishment”.[14] The plaintiff reported that he still had back problems but was a little better. Mr Elsner felt that his back condition was significantly better than on the previous visit, in that he was on a relatively low dose of Oxycontin, had a better range of lumbar movements, could walk further, sit longer and no longer had reduced sensation in the right leg or any pain below the right thigh. He concluded that it would be appropriate for the plaintiff to have a vocational assessment and rehabilitation assistance in re-entering the workforce. He felt that the plaintiff was physically capable of employment that avoids lifting more than 12 kgs on a regular basis, that avoids repeated or prolonged below waist level bending activities, and that allows him to alternate sitting and standing activities.

[14]           PCB p. 39.

22        Mr Timothy Gale, orthopaedic surgeon, performed a whole person impairment assessment and reported to the defendant in April 2008 that in relation to the lower back the plaintiff suffered a degenerative disc injury requiring surgical decompression and spinal fusion to the lower two levels of the lumbar spine. There was no evidence of radiculopathy. He felt that the physical examination suggested that was “a non-organic functional component to his current symptomatology in the form of a chronic pain syndrome and abnormal illness behaviour”.[15]

[15]           PCB p. 46.

23        Mr Nick Adcock, physiotherapist, reported in May 2008 that the plaintiff would not be able to perform lifting more than 5 kgs, perform repetitive bending, sustained sitting or standing greater than thirty minutes and walk more than two kilometres. He should avoid heavy work, but would be suited to alternative part time work for 12 hours per week. Given these restrictions, he felt that the plaintiff should be provided with vocational assessment and job searching assistance. In October 2009, Mr Adcock felt that the plaintiff had a poor prognosis “due to the nature of the significant injury, nature of previous employment, ongoing symptoms, chronic pain and associated psychosocial issues”.[16] He felt that the plaintiff would “find it very difficult to find re- employment with his current condition and limitations”.[17] Once his pain levels stabilised and his medications reduced, he may have a capacity for part-time modified very light duties, with no lifting more than 5 kgs, no repetitive bending or twisting and no prolonged sitting, standing or walking. Given his employment history, age and education, he felt it was unlikely that the plaintiff would find suitable re-employment.

[16]           PCB p. 74.

[17]           Ibid.

24        Dr Clayton Thomas, rehabilitation consultant, reported to the plaintiff’s solicitors in September 2009 that the plaintiff’s dominant problem was his back pain extending into the right leg. He diagnosed an organic injury and felt that the plaintiff presented “as a reliable witness”[18] and as being “genuinely disabled from his back complaint”.[19] He felt that the plaintiff would be permanently restricted to sedentary work up to 16 hours per week and should avoid lifting more than 5 kgs between waist and chest height. However, he concluded that the plaintiff:[20]

“did not present as having any overall capacity form the point of view of successfully re-entering the work force. From this point of view, he would not be capable of performing suitable employment nor be capable of returning to any form of mainstream employment even within restrictions that I have stipulated on him. He presents as an unacceptable risk to a prospective employer. His previous strength was in his physicality, in his ability to use his back. This has been taken away from him”.

[18]           PCB p. 81

[19]           Ibid.

[20]           PCB p. 82.

25        Mr Peter Wilde, orthopaedic surgeon, reported to the plaintiff’s solicitors in Febraury 2010 that the plaintiff complained of intense pain which was moderately relieved by medication and said he needed help daily in most aspects of self care. On examination he found “a genuine and sincere man”[21] whose lumbar movements were restricted in all directions because of pain. He concluded that the plaintiff could not return to manual work and had few transferable work skills and very limited employment prospects given his age, education and injury. For these reasons, he felt that the plaintiff had no work capacity. If he did return to the workforce, Mr Wilde noted he should avoid bending, lifting, twisting, prolonged sitting or standing. He could manage part time hours up to 20 hours in sedentary or “very light tasks”.[22]

[21]           PCB p.104(c).

[22]           PCB p. 104(a)

26        Mr Wilde viewed the video surveillance material on 29 ,30 and 31 January and 1 February 2008, and 14 and 25 December 2007 and reported on 23 February 2010 that the observed activities were consistent with what the plaintiff told him and with Mr Wilde’s conclusions that he could work up to 20 hours per week in sedentary or very light tasks. He felt that the video surveillance merely confirmed that the plaintiff “suffers with chronic lumbar pain and stiffness but with narcotic medication is able to use his back for straightforward activities such as walking, lifting items from waist height and intermittent bending”.[23]

Vocational assessment reports

[23]           PCB p. 104(f).

27        In February 2008, Konekt Australia provided an Activities of Daily Living Assessment report to the plaintiff, which reviewed his request for rails at his home. On the day of assessment, the plaintiff walked with a wide gait up to his front door, and grabbed door frames when using internal steps within the house. The report recommended provision of a shower stool, handheld shower and switch-cock, and the installation of rails at the front and rear of the house, near the shower and on internal steps.

28        Konekt Australia provided a Vocational Assessment Report dated 24 August 2009 to the defendant[24]. For the sake of completeness I note that Konekt had provided an earlier report, in October 2007, which identified four suitable employment options: Inventory Clerk; Stores Despatch Clerk; Process Worker; and Hand Packer[25]. The report also recommended the plaintiff undertake a computer training course. This report is of little assistance in the light of the subsequent report provided in August 2009.

[24]           DCB p. 52-70

[25]           DCB p. 71-79

29         The report identified four employment options for the plaintiff having regard to his age, experience, transferable skills and medical capacity: Sales – Tools; Sales – Timber Products; Product Assembler – Light Products; and Warehouse Assistant- Light Products. The report noted that job prospects in the third of these options were below average. The first and second positions required good communication skills and ability to deal accurately with money. The second position required use of computers and Microsoft software. The third position required physical fitness for manual work, ability to carry out repetitive tasks quickly and methodically, and an ability to read instructions. The job vacancy identified required a person with at least 2 years experience in electronic assembly. The fourth position required the worker to move stock, drive a forklift, enter details of receipts and invoices into computers, be physically fit, and have a good memory and organisational skills. The job vacancy identified required an experienced warehouse clerk. The report concluded that the plaintiff would be able to obtain employment without further retraining.

30        In September 2009, Flexi Personnel reported that the plaintiff had very limited prospects of finding suitable employment or being retrained into any alternative vocation, full time or part time. This was due to a number of factors including his age, the absence of transferrable skills, his work restrictions, pain levels and medicated state.[26]

[26]  

31        In October 2009, Katrina Green provided a vocational assessment report to the plaintiff’s solicitors in which she concluded that the main occupations for which he was suited were: factory process worker, hand packer, labourer, garden and nursery labourer. She concluded that given his reduced physical tolerances, none of these occupations would be suitable employment options for him for the foreseeable future. She concluded that in the light of his restrictions, he was unable to perform the duties of his previous occupation “or the inherent duties of any suitable employment within the foreseeable future”.[27]

Serious Injury - Legal Principles

[27]           PCB p. 90.

32 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[28] fairly described as being more than significant or marked, and as being at least very considerable.[29]

[28]

[29]  

33        Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[30] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[31] On the authorities,[32] the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.

[30]           Fleming v Hutchinson (1991) 66 ALJR 211.

[31]           See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].

[32]  

34        The whole of the evidence before the court should be considered, not just the medical evidence.[33]

[33]           Ibid, [80].

35        The psychological or psychiatric consequences of a physical injury are not to be taken into account in an application confined to paragraph (a) of the definition of “serious injury”.[34]

[34]           Ibid, [85]. See also Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [170].

36        Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[35]

[35]           Barwon Spinners Pty Ltd & Ors v Podolak [2002]VSCA 33; Petkovski v Galletti (1994) 1 VR 436.

37 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% of his pre-injury earnings as determined in accordance with paragraph (f) of section 134AB(38) of the Act.[36]

[36] See Section 134AB(38)(g) of the Act.

38        The worker’s loss of earning capacity is to be determined “having regard to employment that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker who is incapable of performing his normal work”.[37]

[37]           See Smorgon Steel Tube Mills Pty Ltd v Miliovj Majkic [2008] VSCA 230 per Buchanan JA at [10].

39 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of her application.[38]

Findings and reasons

[38]           See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63].

40        I found the plaintiff to be a very straightforward witness, a man of very limited education who gave short and direct answers to the questions asked of him. I accept his unchallenged account of the incident in which he was injured and of the sequelae of that injury in terms of his pain, restrictions of movement, impact on his daily life, domestic, social, recreational and occupational activities. I note the medical consensus that his prognosis is not good, and I note Mr Carey’s opinion that he may have to have the metal removed from his lumbar spine and may suffer “adjacent segment degeneration involving a level or levels above his fusion”.[39]

[39]           PCB p. 66.

41        I viewed the video surveillance material which was the subject of comment by Mr Wilde, Mr Elsner, Mr O’Brien and Dr Ward. I note that his presentation on the video surveillance represents but a few snapshots in time, taken two years ago, and is of limited assistance in establishing the plaintiff’s level of incapacity as at the date of the hearing before me. I also note the plaintiff’s evidence that he has been aware of being filmed every six weeks or so for the past six months. I note that the defendant has not sought to rely on any surveillance material obtained since early 2008.

42        Taking the defendant’s case at its highest, all that the surveillance material suggests, according to Mr Elsner and Mr O’Brien, is that the plaintiff retains a residual capacity for employment. Before seeing the video surveillance material, Mr Elsner felt that he could work only 12 hours per week and lift no more than 12 kgs. After seeing the material, he felt the plaintiff could work full time doing light delivery work, assembly work or sales work in a bakery, provided he did not lift over 12 kgs or do repeated waist level bending activities. Before seeing the material, Mr O’Brien felt the plaintiff would never return to work. After seeing the material, he felt that the plaintiff had a physical capacity to work in modified duties.

43        On the other hand, the plaintiff’s treating doctor, Dr Ward, and Mr Wilde, orthopaedic surgeon, did not change their opinions after viewing the material and still concluded that the plaintiff was totally incapacitated for employment. Dr Ward felt that the presentation on the video was consistent with the fluctuating symptoms experienced by the plaintiff from time to time. He has continued to see the plaintiff regularly since early 2008 and is in my view in the best position to assess the plaintiff’s capacity in the context of what he considers to be a fluctuating condition. Mr Rowe said he could do those things when things were going well. Mr Wilde felt that the mobility seen on the surveillance material was consistent with an ability, assisted by narcotic medication, to use his back for straightforward activities.

44 Even assuming that, as at the date of the hearing, the plaintiff had a residual physical capacity for employment, leaving aside any psychological consequences of his injury, I find for a number of reasons that due to the permanent impairment of the function of his lumbar spine there is no employment for which the plaintiff is suited when regard is had to the definition of suitable employment in section 5 of the Act.

45        First, I do not accept the “suitable” employment options identified by Konekt in August 2009. It is clear from the evidence before me that he is not physically fit, does not have a forklift licence, or any experience in electronics assembly, or any relevant knowledge of computers, or good communication skills which would enable him to work in sales.

46        Second, it is clear from the evidence that he has only ever done manual work, that he has a poor level of education and struggled academically, and that he has no other skills. Indeed, Katrine Green’s report in 2009 was to the effect that the only occupations for which he was suited were manual labour type occupations which, due to his back injury and restrictions, he would be permanently unable to undertake.

47        Third, I note that the plaintiff continues to be certified as totally incapacitated for employment by his doctor, Dr Ward.

48        Fourth, I also note that he was not offered a return to work plan following his surgery even though he asked the defendant for retraining, and that the defendant, a large organization with hundreds of factory workers and an onsite office, could not find suitable employment for him and terminated his employment. It is also of some significance that while the plaintiff was given vocational assistance by Konekt, that organisation was unable to find him suitable employment or even arrange an interview for him.

49        Finally, I accept the uncontested evidence from Ms Green and from the Flexi Personnel report by Ms Angel that the plaintiff is not a suitable candidate for retraining due to his age, absence of transferable skills, work restrictions, pain levels and medicated state.

50        For these reasons, I consider that the plaintiff has discharged the onus he bears to establish that there is no employment for which he is suited.

51 I therefore consider that the plaintiff has established the requisite loss of earning capacity required by s.134AB(38)(f) of the Act and that the loss of earning capacity consequences of the permanent impairment to the lumbar spine are when judged by other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.

Conclusion

52        It follows that leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the lumbar spine sustained during the course of his employment after October 1999 and including in or about April 2004. I reserve the question of costs.

PCB p. 104. See section 134AB(38)(c) of the Act.

See section 134AB(38)(h) of the Act.