Sabbagh v Electprest Pty Ltd

[2010] VCC 1768

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-02933

John Sabbagh	Plaintiff
v
Electprest Pty Ltd (T/A Harvey Norman	Defendant
Electrics Preston) & Anor

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August & 17 November 2010
DATE OF JUDGMENT:	20 December 2010
CASE MAY BE CITED AS:	Sabbagh v Electprest Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 1768

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment or loss of a body function – left inguinal hernia injury– loss of earning capacity – pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Moore Q.C.	Nowicki Carbone
with Ms M. Szydzik
For the Defendant	Mr J. Batten	Thomsons Lawyers
HER HONOUR:

1 Mr Sabbagh seeks leave to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of a left inguinal hernia injury suffered on or about 8 April 2005 while lifting a heavy washing machine during the course of his employment with the defendant as a sales person. The application is made under s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).

The injury

2          In spite of technically successful hernia repair surgery in June 2005, Mr Sabbagh was left with persistent pain in the left groin region with referred pain and numbness in the left leg. He returned to work on light office duties with no lifting. In September 2005, he was assaulted at work and suffered psychological injuries which prevented him from working and for which he continued to receive psychological treatment until his claim for psychological injury was settled in September 2009. He has not worked since September 2005. He had further hernia surgery in March 2007. After the second round of surgery, he continued to have left groin pain and numbness in the left leg. He says that his psychological injury had completely resolved by December 2009[1] but that his ongoing inability to work results from the neuropathic pain he suffers in the left ilio-inguinal nerve.

[1]             On 12 January 2009, the plaintiff executed a release in respect of his psychiatric injury claim – see Defendant’s Court Book (DCB) 162.

3          He takes Oxynorm (1 per day), Maxilon and Valium daily, but two or three days per week requires a second Oxynorm. Since the resolution of his psychological symptoms, the plaintiff’s treating doctor has continued to certify him unfit for all work due to the organic injury to the inguinal nerve.

The issues

4          The parties agree that Mr Sabbagh suffers neuropathic pain in the distribution of the left ilio-inguinal nerve as well as left neuralgia paraesthetica indicative of trauma to the left lateral cutaneous nerve of thigh.

5          Mr Sabbagh says that his work capacity has been permanently extinguished by the impairment. The defendant says that he was physically fit to return to work after the first and second hernia repair but did not do so because of psychological factors. The defendant also says that his post-hernia syndrome is not totally disabling, and that he has a residual capacity for full-time alternative employment but has made no effort to engage in rehabilitation, pain management or retraining. The defendant says that there are non- organic factors at play which may explain his failure to undergo rehabilitation or to seek work, which must not be taken into account. Accordingly, the defendant says that his work capacity is unexercised and that he has not established that he cannot earn $600 gross per week.

The hearing

6          The hearing of the application commenced on 4 August 2010. After Mr Sabbagh completed his evidence, I raised a number of matters with his counsel, who then sought an adjournment of the further hearing of the application in order to provide up to date medical reports. The hearing resumed on 17 November 2010. No further oral evidence was called. The plaintiff relied on: the ultrasounds of the left groin; reports from treating doctors (Dr Gya, Mr Michell, Dr Cher, Dr Pathak); medico-legal reports of Mr Mangos, Dr Thomas, Professor Teddy and Dr Rose; and a vocational assessment of Katrine Green. The defendant relied on the medico-legal reports of Mr Brygal, Mr Troy, Dr Stern, Dr Jackson, Mr Battlay, Dr P Thomas, Mr Grossberg and Dr Cher.

Work Capacity

Plaintiff’s evidence

7          In his affidavits and oral evidence, Mr Sabbagh stated that in spite of two rounds of hernia surgery as well as a serious of local anaesthetic injections from Mr Mitchell in Mary 2007, he continues to suffer left groin pain and pain and numbness in his left leg, for which he takes two Oxynorm about four to six times per week, as well as Valium to help him sleep. On two to three days of the week, he takes additional Oxynorm and Valium. He also takes Maxolon and Mersyndal Forte. He finds it difficult to straighten his back. The pain is exacerbated by long periods of sitting or standing, carrying moderately heavy objects and engaging in household cleaning. The pain restricts his physical relationship with his wife and his ability to play with his children. The pain and numbness prevents him from walking, driving, sitting or standing for long periods.

8          At the hearing, he said he is unable to do any light job for even nine hours per week because he is unreliable due to his pain. On a good day he says he can work three hours per day, but four to six days per week he says he is bedridden and on medication. He agreed that he speaks perfect English and reads and writes English well, having come to Australia from Lebanon at the age of 7 in 1979.

9          In cross-examination, he said that before working for the defendant he worked for his uncle for seven years repairing washing machines. Another uncle involved in importing rugs offered him a job as a sales assistant in his shop prior to late 2009 but Mr Sabbagh said he did not get back to him because he felt his medical condition was getting worse.

10        He agreed that he returned to work on 21 July 2005 after his first hernia repair and continued selling activities for normal hours with no lifting. After the assault, his mood deteriorated and he ceased work on 27 September 2005. He agreed that he has not looked for work since then. In particular, he has not looked for work since his psychological condition had resolved. He said that after seeing Dr Clayton Thomas and other specialists in 2007 he realised his work options were diminishing but said that he did not discuss this in his consultation with Dr Thomas with Dr Pathak. He does not do regular exercise or regular activities. He does not look for vocational assistance because his treating general practitioner, Dr Pathak, continues to certify him unfit for all duties. He agreed that some doctors had recommended pain management, and said that he had an appointment at the Alfred Hospital clinic which was cancelled when it was discovered he was a WorkCover patient.

11        He agreed that his hernia pain resolved after surgery but says the nerve pain persists. He has only one or two pain free days per week.

12        In re-examination, Mr Sabbagh said that he did not feel he could work because he would be unreliable due to his pain. He said his doctor continued to certify him unfit for all duties.

Radiological investigations

13        Ultrasound of the left groin on 27 April 2005 was reported as revealing a “left indirect inguinal hernia passing along the entire length of the inguinal canal”.[2]

[2]             Plaintiff’s Court Book (PCB) 37.

14        Ultrasound of the left groin on 15 September 2005 was reported as revealing a “direct hernia towards the medial end of the inguinal canal”.[3]

[3]             PCB 38.

15        Ultrasound of the left groin on 14 October 2005 was reported as revealing a “small reducible indirect inguinal hernia”.[4]

[4]             PCB 39.

16        A histopathology report dated 14 March 2007 diagnosed a “left scrotal lesion – multifocal abscess formation in dermis and subcutis, with evidence of keratotic follicular plugging and epidermal cyst formation”.[5]

Reports of treating doctors

[5]             PCB 40.

17        Mr Ian Michell, general surgeon, saw Mr Sabbagh in October 2005 at the request of Dr Pathak, and received a history of persistent left groin pain after hernia repair. Mr Michell confirmed the presence of a left inguinal hernia and suggested that a revision laparoscopic operation be performed, but noted that Mr Sabbagh was reluctant to proceed. The procedure eventually took place on 8 March 2007, and a few weeks later in his report dated 22 March 2007 Mr Michell noted that he was doing “fairly well”,[6] but still had some pain above the old hernia repair wound.

[6]             PCB 45.

18        Mr Gary Crosthwaite, general surgeon, saw Mr Sabbagh in May 2007 at the request of Dr Pathak, with a history of persistent groin pain after the laparoscopic repair. He told Mr Sabbagh that the options included anti- inflammatories followed by a steroid injection into the area and, as a last resort, further surgery (division of the left ilioinguinal nerve). He suggested referral to a pain specialist.

19        Dr Lawrence Cher, neurologist, saw Mr Sabbagh in July 2007 in relation to his migraines but also in relation to his persistent inguinal pain. Dr Cher diagnosed two problems: the lateral cutaneous nerve of the thigh lesion associated with the paraesthesia and a focal tender point which he felt may be a small nerve fibre.

20        Dr Pathak, general practitioner, provided a number of reports.[7] In his first report he noted that Mr Gya peformed the first hernia repair operation on 21 June 2005 and that Mr Sabbagh was unfit for work for one month before returning to work on light duties. About six weeks later he suffered a second left groin injury when helping to lift a washing machine. Ultrasound confirmed a recurrence of the hernia and a repair was performed by Mr Michell. He was referred to Dr Cher. Dr Pathak noted Mr Sabbagh’s report of regular groin pain for which he had been taking heavy medication which makes him sleep. Dr Sabbagh told him he could drive up to 30 minutes but could not help his wife at home. Dr Pathak diagnosed ongoing groin pain as a result of hernia repair surgery, as well as a complex regional pain syndrome. He felt that Mr Sabbagh was totally and permanently incapacitated for his pre-injury duties and, due to his pain, for all work. He felt that the groin pain was due to scarring of the inguinal nerve and was likely to continue indefinitely. He noted that treatment options were limited and included local injection of Cortisone and further surgery the result of which would be uncertain and may not relieve his pain.

[7]             The reports were dated 19 November 2009, 2 March 2010, 29 and 30 September 2010, 1 October 2010 and (a letter) 16 November 2010.

21        In his second report, Dr Pathak noted that Mr Sabbagh was still experiencing groin pain in spite of heavy medication and steroid injections into the area. The pain was restricting his social, domestic and recreational activities and was interfering with his sex life. Whereas prior to the injury he played tennis and went bowling with his children, could make long family trips and do household chores and shopping, he could no longer do these activities and could not sit or stand for long periods or lift more than 10 kilograms. Dr Pathak noted that he could not sit at an office desk for long or drive long distances. He felt that in the light of his education and work history, along with his physical restrictions, Mr Sabbagh had no residual capacity for any employment as a result of his inguingal hernia injury. He felt that this situation was permanent due to the scarring damage to the left ilio-inguinal nerve.

22        In his third report, Dr Pathak noted the persistence of the groin pain and restrictions. He again diagnosed a neuropathic pain syndrome in the distribution of the left ilioinguinal nerve following from the first hernia repair surgery. He felt that the symptoms would persist and that Mr Sabbagh would not be accepted for pain management programs while his claim was on foot. He repeated his earlier conclusions concerning work capacity.

23        On 30 September and 1 October 2010 Dr Pathak confirmed that none of the employment options suggested by Katrine Green were suitable for Mr Sabbagh. On 16 November 2010 Dr Pathak opined that Mr Sabbagh would not benefit from any multidisciplinary pain management in the long term, and that his physical injuries, leaving aside any psychiatric condition (which he felt would not interfere with his return to employment), resulted in a permanent incapacity for any employment.

Medico-legal reports relied on by the plaintiff

24        Mr Peter Mangos, general surgeon, provided a medico-legal report dated 24 August 2009 in which he diagnosed post-hernia repair groin ache of uncertain nature, but probably attributable to scarring of the ileo inguinal nerve. Mr Mangos concluded that Mr Sabbagh was permanently incapacitated for his pre-injury employment due to his pain and restrictions, as well as permanently incapacitated for any regular work unless his pain could be alleviated. He did not expect any significant improvement in the future. He agreed with the diagnosis of complex regional pain syndrome.

25        Dr Clayton Thomas, rehabilitation physician, provided a medico-legal report dated 21 October 2009 in which he diagnosed severe neuropathic pain following damage to the ileo inguinal nerve during the original hernia repair surgery as well as damage to the lateral cutaneous nerve of the thigh which was causing numbness in the thigh. He recommended review by a pain specialist and canvassed other treatment options including further local injections, trial of medications used for neuropathic pain, and electrical stimulation.

26        Dr Thomas concluded that Mr Sabbagh had a partial incapacity for work as a result of the left inguinal problem and could not return to his pre-injury duties, although he could work in a position up to full time if the work did not involving lifting more than 10 kilograms or placing strain through the left groin. Given Mr Sabbagh’s age and good presentation, Dr Thomas felt he needed to actively pursue retraining and vocational options.

27        Professor Teddy reported on 11 March 2010 a diagnosis of neuropathic pain in the distribution of the left ileo-inguinal nerve, as well as left neuralgia paraesthetica indicative of trauma to the left lateral cutaneous nerve of the thigh. He felt that Mr Sabbagh could engage in some form of light work if suitable analgesia could be obtained, and supported assessment for rehabilitation through a multi disciplinary pain program.

28        On 24 September 2010, Professor Teddy reported that the plaintiff’s symptoms were likely to persist in the long term. He agreed with the comments of Dr Rose. Professor Teddy concluded that Mr Sabbagh had no current work capacity and concluded that limited objectives may be achieved with a pain management program but that undertaking such a program was unlikely to result in permanent employment on a regular basis, for which he would require both physical and psychological support.

29        Dr Rose reported on 16 August 2010 that Mr Sabbagh was suffering from a permanent chronic post herniorrhaphy pain, which he described as a neuropathic pain syndrome but which is also described by some colleagues as a complex regional pain sydrome type 1. Dr Rose reported that the treatment for this condition is the combined usage of antidepressant medication, antiepileptic medication and at times infusions of ketamine. He noted that Mr Sabbagh had already had trials of antidepressant medication and had had a failed trial of Lyrica (an antiepileptic medication). He felt that any further interventions, such as ketamine infusions, TENS therapy and laser acupuncture would be unlikely to have any significant effect and that there was no likelihood that his condition would improve in the foreseeable future. Dr Rose noted his conviction that Mr Sabbagh’s condition was a physical pain syndrome and not a psychosomatic pain syndrome. He concluded that Mr Sabbagh was permanently incapacitated for his pre-injury duties and had no current work capacity. He felt that it was possible that with comprehensive rehabilitation involving pain management or retraining the plaintiff might have a capacity for working more than 15 hours per week but was uncertain as to whether it would ever be on a regular basis. He recommended referral to a pain specialist.

Medico-legal reports relied on by defendant

30        Dr Stephen Stern, psychiatrist, reported on 4 June 2008 that there had been no improvement in Mr Sabbagh’s chronic post-traumatic stress disorder (“PTSD”) and that he was psychiatrically incapacitated for all work at the present and required continuing psychiatric treatment, and that his symptoms were chronic and long-term.

31        Dr Ian Jackson, psychiatrist, reported on 9 August 2008 a history from Mr Sabbagh of psychiatric treatment from Dr Thomas a few times a month since September 2005. Dr Jackson noted that he found the plaintiff extraordinarily difficult to assess. He felt that the actual presentation on examination was not that of clear PTSD. He concluded:

That is, I make a provision diagnosis of an unusual PTSD but there is considerable evidence that for some reason he needs to adopt the sick role. Further, some of his responses and apparent mental state had hints of a full psychosis but I cannot, at this stage, make such a diagnosis.[8]

[8]             DCB 117.

32        Dr Jackson noted that Dr Stern found in November 2007 that in fact Mr Sabbagh was not head butted at work but became hysterical, and that in this context the diagnosis of PTSD was no longer appropriate. Dr Jackson agreed that this was so, and concluded that there “must be considerable doubt about his long-term, apparently accepted, diagnosis of PTSD”.[9] Dr Jackson could not rule out that Factitious Disorder or Conversion Disorder were the causes of his current and unusual disability. In his later report dated 6 November 2008, Dr Jackson repeated his conclusion that Mr Sabbagh did not fit the diagnostic criteria for PTSD.

[9]             DCB 118.

33        Associate Professor George Mendelson, psychiatrist, reported on 31 October 2008 in response to some reports of Dr Pathak and Dr Rajan Thomas. He repeated his earlier opinion that Mr Sabbagh did not have PTSD but that the symptoms of anxiety and depression described by him were “maintained by his need to portray himself as a ‘victim’ and by ongoing litigation”.[10] He felt that finalisation of his claim would lead to an improvement in his symptoms.

[10]           DCB 142.

34        Mr Sabbagh’s treating psychiatrist, Dr Rajan Thomas reported on 24 January 2006 that he was suffering from a Major Depressive Illness and from PTSD. He prescribed a tranquilizer, an anti-depressant, and regular psychotherapy. On 2 September 2008, Dr Thomas reported to the plaintiff’s solicitors that Mr Sabbagh was suffering Major Depression with psychotic features, as well as PTSD, and was currently taking Seroquel and Effexor. He noted that Mr Sabbagh’s psychiatric condition had become chronic and treatment resistant and would persist indefinitely.

35        Dr Lawrence Cher, neurologist, reported on 19 April 2007 that he saw Mr Sabbagh in relation to his headaches. He felt that many of these headaches related to the heavy ingestion of opioids such as Panadeine Forte and Mersyndol Forte. He noted that any prophylactic therapy for his chronic headaches would not work until he stopped regular opioid use. He recommended a regime for reducing use of opioids and taking Sandomigran instead.

36        Mr Peter Battlay, surgeon, reported on 13 August 2008 that in his opinion Mr Sabbagh was suffering from neuropathic pain in the left groin but also that he seemed preoccupied by his pain to an unusual degree. He felt that the major problem was his psychiatric condition. He felt that due to the groin problem Mr Sabbagh could not return to his pre-injury duties but did have a current physical work capacity with no lifting more than 15 kilograms

37        Mr Maurice Brygel, surgeon, reported on 19 August 2009, that he was unable to examine Mr Sabbagh adequately because of his tenderness but felt that it was unlikely that the pain was due to an injury to the nerve. Mr Brygel felt that his response to pain was exaggerated, but was unable to say if this was intentional. He recommended assessment by a pain clinic.

38        Mr Michael Troy, surgeon, reported on 19 March 2010 that Mr Sabbagh had a left inguinal hernia brought on by the nature of his work in April 2005, a recurrence in September 2005, and symptoms of pain relating to the area of the hernia repair plus the abnormal sensory changes in the distribution of the lateral cutaneous nerve supply. Mr Troy suggested injection of some local anaesthetic into the ilio-inguinal nerve. He felt that Mr Sabbagh had the physical capacity to work in sales, lifting loads of up to 10 kilograms correctly, but that he needed to be able to stand and move at will. He felt that the plaintiff could be computer trained, and that he could be a meeter/greater, a security guard in a factory setting, or a traffic control officer. He concluded:

There appears to be some psychological impact regarding to his pain, which is out of all proportion to the nature of what he has described by way of surgery and subsequent symptoms. Whether that relates to his stress claim or not I am unable to state, I am not a psychiatrist. I consider that his symptomatology is out of all proportion to what once finds clinically on examination.[11]

[11]           DCB 62.

39        Mr Peter Grossberg, surgeon, reported on 29 September 2010 his conclusion that Mr Sabbagh was suffering from a neuropathic pain post inguinal hernia repair in the distribution of the left ilioinguinal nerve, as well as some damage to the lateral cutaneous nerve of the thigh. He felt that pain was probably caused by the hernia repair. He felt that Mr Sabbagh had already had appropriate treatment, but did not believe the symptoms were curable. He felt that a pain management program should reduce the severity of his pain and allow him to copy better with his life. On 11 November 2010, Mr Grossberg noted that in the light of his symptoms Mr Sabbagh could not sustain a full time job but may be able to work part time in sales with no lifting or in work which involved periods of standing and sitting. He felt that there was a functional element to his condition, as his symptoms appeared to be “out of proportion to the nature of the operation and the supposed damage that has been caused”.[12]

Vocational reports

[12]

40        Katrine Green provided a vocational assessment report dated 28 September 2010. She reviewed the medical reports referred to above and after considering Mr Sabbagh’s educational background, work history and transferable skills, she identified a number of potential occupations for which he could be considered, including: retail supervisor or sales assistant, sales representative, merchandiser, sales clerk, receiving and despatch clerk, storeperson/order, picker/assembler, delivery driver and refrigeration mechanic. She considered each of these in turn and found that he was permanently physically incapable of doing the core physical duties involved in each of the jobs having regard to his pain syndrome, medical restrictions, standing, sitting and driving tolerances, current medication and its side- effects.

Serious Injury - Legal Principles

41 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,[13] fairly described as being more than significant or marked, and as being at least very considerable.[14]

[13]  

[14] See section 134AB(38)(c) of the Act.

42        Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[15] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[16] On the authorities,[17] 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.

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

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

[17] Ibid [80].

43        The whole of the evidence before the court should be considered, not just the medical evidence.[18]

[18] Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at

44        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, as a result of the injury he has suffered a permanent loss of earning capacity of 40% when a comparison is made between his without injury earnings in the three year period before and after period as best reflects his earning capacity, and his earning capacity at the present time from suitable employment.[19] The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical or mental capacity for suitable employment[20] 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.[21]

[19] [170].

[20] The definition of “suitable employment” is set out in s.5(1) of the Act and requires regard to the nature of the worker’s incapacity, pre-injury employment, age, education, skills, work experience, place of residence, return to work plans, and occupational rehabilitation services “regardless” of whether the

[21]           work is available or is of a type or nature that is generally available in the employment market.

45        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 capacity 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.[22]

[22]

46        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”.[23]

Findings on physical capacity for employment

[23]  

47        None of the plaintiff’s treating or examining doctors was required for cross- examination. Their opinions were unchallenged.

48        I note that Mr Brygel, Mr Troy and Mr Grossberg found some non-organic aspects to the plaintiff’s presentation. Mr Brygel was unable to properly examine the plaintiff. However, Mr Troy and Mr Grossberg were satisfied that the plaintiff was suffering from neuropathic pain as a result of his hernia repair surgery.

49        I note that a number of specialists (Mr Battlay in 2008, Dr Clayton Thomas in October 2009 and Mr Troy in March 2010) felt that the plaintiff had the capacity to return to full-time alternative work with no lifting or no lifting over 15 kilograms. Mr Grossberg felt that the plaintiff could return to sales work only part-time with no lifting.

50        However, Mr Teddy felt in March 2010 that the plaintiff could only do light work if his pain could be relieved. Dr Rose’s conclusion was to the effect that with comprehensive rehabilitation involving pain management or retraining the plaintiff might have a capacity for working more than 15 hours per week but he was uncertain as to whether it would ever be on a regular basis.

51        On the other hand, the weight of the most recent evidence, which is unchallenged, from the plaintiff’s treating doctor, Dr Pathak, and from Mr Mangos and Mr Teddy (in his second report) is to the effect that due to his organic neuropathic pain the plaintiff will have no work capacity for the foreseeable future. Dr Pathak considered that the plaintiff would not benefit from a pain management program. The plaintiff’s evidence concerning his capacity is to similar effect: he would try to work if something suitable could be found, but feels it is unlikely that he could be a reliable employee due to his pain and the side-effects of the medication taken for that pain. This evidence is consistent with the conclusions reached by Ms Green in her vocational assessment report to the effect that due to his physical restrictions, pain syndrome, sitting, standing and driving tolerances, medication regime and side-effects, the plaintiff was not capable of carrying out the core physical duties involved in any of the potential occupations she identified.

52        Having regard to the foregoing evidence, I consider that, leaving aside any psychological consequences of his physical injury or any non-organic component of his physical injury, that the plaintiff has suffered a permanent impairment of the function of the ileo-inguinal nerve and of the left lateral cutaneous nerve of the thigh. The impairment comprises chronic neuropathic pain and sensory symptoms. Dr Pathak has indicated that pain management is not an appropriate avenue for the plaintiff to pursue. In the light of his symptoms, medication regime and restrictions I do not consider that he is a suitable candidate for retraining or rehabilitation. In the light of these matters, I am satisfied that the plaintiff’s incapacity for work will persist for the foreseeable future.

53        It follows that the loss of earning capacity consequences of his permanent impairment are more than considerable when compared with other cases in the range of permanent impairments of this kind, and that the plaintiff has made out the requirement to establish a permanent loss of earning capacity of 40 percent or more.

Conclusion

54         Leave is granted to the plaintiff to bring proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury to the ilio-inguinal nerve suffered during the course of his employment with the defendant on 8 April 2005. I reserve the question of costs.

DCB 150D.
See section 134AB(38)(b) of the Act.

See section 134AB(38)(e)(i) and (38)(f) of the Act.

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

Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority

See [2009] VSCA 170 per Redlich See section 134AB(38)(h) of the Act.