Saville v DHL Express (Australia) Pty Ltd
[2010] VCC 797
•25 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY APPLICATION DIVISION
Case No. CI-09-00565
| BRAD SAVILLE | Plaintiff |
| v | |
| DHL EXPRESS (AUSTRALIA) PTY LTD | First Defendant |
| (ACN 001 112 929) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 March 2010 |
| DATE OF JUDGMENT: | 25 June 2010 |
| CASE MAY BE CITED AS: | Saville v DHL Express (Australia) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0797 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – low-back injury – whether “serious”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with | Slater & Gordon Ltd |
| Mr D J N Purcell | ||
| For the Defendant | Mr M R Titshall QC with | Herbert Geer |
| Mr P J Gates | ||
| HIS HONOUR: |
1 By way of Originating Motion dated 16 February 2009, Brad Saville (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for injury to his low-back throughout the course of his employment with DHL Express (Australia) Pty Ltd (“the first defendant”) and in particular on 27 February 2007 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over one day, and the following evidence was adduced:
(a) The plaintiff gave evidence and was cross-examined; (b) The plaintiff tendered the following evidence: (i) pages 5-65 of the Plaintiff’s Court Book (PCB) (“Exhibit A”);
(ii) pages 3-6 inclusive of the Defendant’s Court Book (DCB) – report of Professor Balla dated 16 December 2008 (“Exhibit B”);
(iii) page 35 of the Defendant’s Court Book – report of Dr Brian Lovell dated 29 March 2007 (“Exhibit C”);
(iv) pages 140-143 inclusive of Defendant’s Court Book – progress report dated 21 August 2007 (“Exhibit D”);
(v) pages 144-147 inclusive of Defendant’s Court Book – progress report dated 28 June 2007 (“Exhibit E”);
(vi) pages 161-163 inclusive of Defendant’s Court Book – Workfocus Australia’ Case Background Report dated 24 May 2007 (“Exhibit F”);
(vii) Co Work Pty Ltd report dated 26 November 2009 (“Exhibit G”).
(c)
The defendants tendered pages 7-29, 31-34, 36-40, 94-103, and 150- 152 inclusive from the Defendant’s Court Book (“Exhibit 1”).
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:
“serious injury means–
(a) permanent serious impairment or loss of a body function; ...”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low-back.
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the injury” suffered by him arose out of, or in the course or due to the nature of, his employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)
“the injury” and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)
the “consequences” to the plaintiff of the low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of
possible impairments ... fairly described as being more than significant or
marked, and as being at least very considerable”: (see s.134AB(38)(b)
and (c) of the Act). ( my emphasis).
The test for “serious” is sometimes referred to as the “narrative test”.
8 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:
(a) that as at the date of hearing the plaintiff has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and (b) that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii) of the Act). 9 In determining the application, the Court:
(a)
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)
must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)
must give reasons which are extensive and complete as the court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]-[92]);
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 delivered on 28 July 2009, and in particular at paragraphs [60]-[64]).
(e)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]).
The Issues
10 Senior Counsel for the defendants informed the Court that issues arose as to whether or not the low-back injury was “serious” in respect to “pain and suffering” and “loss of earning capacity”. I did not understand Senior Counsel for the defendants to be disputing that the plaintiff suffered some type of compensable low-back injury, but rather, the organic aspects of such injury now were negligible: (see T13, L2-21). The Court was also informed that there was an issue as to whether the plaintiff had discharged his onus to rehabilitate and retrain: (see T14, L23-31).
Preliminary Issue
11 At the commencement of the proceeding, I was informed by the parties that an issue had arisen as to how the matter would proceed. Senior Counsel for the defendants stated that it was intended for the matter to proceed “on the papers” with no cross-examination of any witness, including the plaintiff.
Senior Counsel for the plaintiff sought leave to lead evidence from the plaintiff beyond that which was contained in his affidavit sworn on 8 October 2008 which was now nearly eighteen months old. I was informed by Senior Counsel for the plaintiff that the nature of such further evidence sought to be led was mostly “catch up” evidence which would include, so it was said, evidence of the plaintiff seeking out jobs.
I ultimately ruled that the plaintiff could give further evidence on the basis that if such evidence required the defendant to investigate further matters, a favourable view would be taken to any application for an adjournment by the defendant.
12 Oral evidence was given by the plaintiff, and he was subsequently cross- examined by Senior Counsel for the defendant who made no application for an adjournment.
The Background of the Plaintiff, his Injury and Medical Treatment
13 The plaintiff adopted his affidavit sworn on 8 October 2008 (found at page 5 of Exhibit A and hereinafter referred to as “the affidavit”) as true and correct. (See T18, L13).
14 By way of his affidavit, the plaintiff gave the following evidence:
•
He is a thirty-five-year-old (born 23 October 1974) single man who left school in Year 11.
•
On leaving school, he worked in his mother’s ceramic business for six or seven years, before obtaining his truck and forklift licence and commencing work as a truck driver.
•
He was employed by a number of different employment agencies and one of those, Manpower, arranged for him to commence work with the defendant at Tullamarine in or about 2004.
•
In or about 2005, he became a direct employee of the defendant and his duties required him:
“To drive trucks and load and unload trucks and aircraft containers. There was a great deal of lifting by hand. We had to load general freight and boxes into cages which then would be placed on the truck and delivered. I also had to load boxes and general freight onto conveyors. I also had to pull cages with a lever that had wheels on it. Frequently the boxes and freight that I had to lift had no sticker identifying when it was heavy.”
(see paragraph 5 of the affidavit).
•
In or about February 2007, he first experienced low-back pain, and on 27 February 2007, he experienced low-back pain when attempting to lift a heavy box from the rear of his truck at the depot of the defendant at North Melbourne. Immediately prior to this, he had been pulling cages from the rear of a truck.
•
He describes the pain as “sharp and severe”: (see paragraph 10 of the first affidavit) which extended into his left leg.
•
He reported his pain to the first defendant, went to a doctor in Hoppers Crossing on the way home and on the next day, consulted his general practitioner, Dr Olenski, who placed him off work, referred him for a CT scan and prescribed medication to control his pain.
•
In or about June 2007, he returned to work performing light duties but was unable to cope because of back pain and was forced to cease.
•
He was referred for an MRI scan and was informed that he had suffered “an injury to a disc in my back”: (see paragraph 13 of the affidavit).
•
In or about late July 2007, he was referred to the neurosurgeon, Mr Myron Rogers, who advised that there were a number of options, including a “fusion”, which I was “very concerned about”: (see paragraph 14 of the affidavit). However, Mr Rogers thought it “preferable” to undergo a rehabilitation program.
•
He was referred to the Metropolitan Spinal Clinic, and later to Brighton Rehabilitation, where he underwent a six-month rehabilitation course that finished in September 2008. During this course, he underwent physiotherapy and hydrotherapy which assisted him in trying to manage his back pain.
•
When at Brighton Rehabilitation, he came under the care of a psychologist, Dr Boelsen, who treated him for “depression associated with my persistent low-back pain”: (see paragraph 16 of the affidavit).
•
He has been referred to the pain specialist, Associate Professor Barry Rawicki, who he continues to see (as at 8 October 2008).
•
He continues to suffer from continuous low-back pain which fluctuates, depending on what he is doing. The pain is worse on the left side of the back and radiates down his left leg.
•
His back pain is made worse by sitting for long periods, leaning, bending or twisting. When the pain is bad, he has to lie down.
•
He takes the anti-inflammatory medication, Anaprox on a daily basis (as at 8 October 2008), together with Panadeine Forte, Efexor and Temaz to help him sleep.
•
Prior to suffering “the injury”, he was healthy and fit, and able to perform the heavy work with the first defendant “without difficulty”: (see paragraph 22 of the affidavit). Furthermore, prior to the injury, he enjoyed a number of different hobbies and in particular, surfing, which he performed “very regularly, particularly on the west coast”: (see paragraph 23 of the affidavit) and also enjoyed bushwalking with dogs, going out with friends, and playing a guitar in a number of bands.
•
He does not believe he can now return to the sort of work he performed with the first defendant or any sort of work that he had done prior to suffering “the injury”. In particular, he notes that he has never used computers and saw his future “in truck driving”. He has not been able to do any of his normal recreational activities because of back pain and finds that even playing his guitar is “much harder” and he is limited in the time that he can perform this activity.
•
He is restricted in “… [his] … ability to drive a car”: (see paragraph 24 of the affidavit).
•
He has attempted to return to work on a number of occasions with the first defendant but has suffered an exacerbation of his back pain which can be “triggered easily” and he does not believe he could currently return to work because of the pain: (see paragraph 25 of the affidavit).
15 During his evidence-in-chief, the plaintiff also gave the following evidence:
•
He continued to have backache on his left side and down his left leg, which is “always there”: (see T18, L14-20).
•
The pain is relieved by medication and also a back brace, which was bought about five or six months ago, “helps”: (see T18, L21-26).
•
The back and left leg pain flare-up from such activities as “unpacking the dishwasher”, “lifting anything”, “driving for too long”, “sitting for over thirty minutes or standing still for long”: (see T18, L27 – T19, L6).
• He walks about thirty minutes most days, twice a day: (see T19, L9-70). •
He undergoes hydrotherapy about twice a week at the Werribee Aquatic Centre and also attends his general practitioner, Dr Olenski, about once a month to obtain prescriptions for medication: (see T19, L21-31).
•
He takes three or four Panadeine Forte a day, three or four Anaprox (an anti-inflammatory medication) a day, Temazepam and two tablets of Efexor a day (one tablet is 150 milligrams and the other is 75 milligrams).
•
He continues to see Professor Rawicki and an appointment has been made for him in a “couple of months”: (see T20, L25-27).
•
In relation to seeking employment, the following evidence was given (at T20, L31ff.):
“Q: Now, in relation to employment, have you made any enquires
about jobs?---
A: Yes, I have. Q: What are they?--- A: In sandwich bars. I’ve made quite a few. Q: Why do you think – is sandwich bar work something you think you
can do?---A: I think I might be able to do it. Q: Does that require you to sit or stand or are you able to move
around or what?---A: It’s mainly moving around but … . Q: Is the sandwich bar work full-time or part-time?--- A: Part-time. Q: How many applications have you made or how many enquiries
have you made?---A: For that particular job, about seven. Q: Before you worked for the defendant, you were with a labour hire
place. Is that right?---A: Yes. Q: Before you started as a permanent worker with DHL?--- A: Yes. Q: You were with Workforce, who were a labour supply company?--- A: Yes, I was. Q: Have you made enquiries from them?--- A: Yes, I’ve rung the job agencies that I was employed with. I was
with about three and I’ve rung them all.Q: Are they able to help you in any way?--- A: No, they said they will get back to me if anything comes up. Q: When you make job enquiries, do they ask you what you’ve been
doing the last few years?---A: Yes, they do. Q: Do you tell them?--- A: Yes. Q: Do you hear back from them?--- A: No, I haven’t. Q: In addition to sandwich shop jobs and the labour hire places, have
you made any other enquiries?---A: Yes, there was a job advertised in the local paper, the Werribee
Banner, at a call centre.Q: Did you look into that?--- A: Yes, I sent my Résumé in to …. Q: Was that part-time or full-time?--- A: Part-time. Q: Did you hear from them?--- A: No, I didn’t. Q: Any other enquiries from the local paper?--- A: There was a dog obedience position. Q: Does that allow you to walk and so forth?--- A: Things like that, yes, looking after the dogs. Q: Do you have an interest in dogs?--- A: Yes, I used to breed dogs. Q: What happened with that. Was that job full-time or part-time?--- A: Part-time. Q: Did you have any luck with that?--- A: I didn’t hear back from them, no. Q: Anything else you can remember?--- A: No, I’ve rung quite a few jobs though in the last three or four
months.”
16 Under cross-examination, the plaintiff gave the following pertinent evidence:
• The incident on 27 February 2007 “really sparked off [his] back problem”: (see T24, L7-8). • The plaintiff had a lot of back pain before the CT scan and the pain has “improved a little bit” over time: (see T24, L27 – T25, L5). • The plaintiff was “progressing” under Professor Rawicki, but he would tend to “go up and down”: (see generally T25). • Prior to “the injury”, the plaintiff went surfing the weekend before or a couple of weeks before “the injury” (see T26, L16-17) and surfed at Torquay Beach, Jan Juc Beach, and Thirteenth Beach. • Prior to the injury he had three surfboards – “a six-foot one, a ten-foot one, and a real small board”: (see T26, L30-31). • Prior to the injury, he played his guitar with his brother-in-law and friends at a garage and did play at a “few parties”: (see generally T27, L20 – T28, L4). • He did own a Holden Commodore, bought “about five years ago” but drives his “Mum’s car mainly” as the Commodore was in a crash about four months ago: (see T28, L5-17). • He was the driver of a car when it crashed but he did not hurt his back as a result of that accident: (see T28, L30). 17 The following reports from the general practitioner, Dr M Olenski, have been tendered:
(a) Report dated 6 March 2008 (see page 17 of Exhibit A); (b) Report dated 5 May 2009 (see page 22 of Exhibit A); (c) Report dated 17 September 2009 (see page 26 of Exhibit A); (d) Report dated 15 March 2010 (see page 29a of Exhibit A). 18 In his first report, Dr Olenski notes that he has been the general practitioner for the plaintiff for some fifteen years, when he presented to him on 5 March 2007 in relation to his back injury at work on or about 27 February 2007. At the initial examination, he noted left paravertebral spasm and reduced straight leg raising to 20 degrees on the left side. He arranged for a CT scan to be undertaken on 9 March 2007 and an MRI scan on 23 July 2007.
Due to lack of improvement, he was referred to the neurosurgeon, Mr Myron Rogers, who considered that he could either undergo surgery, have an epidural injection or continue with conservative measures. Apparently, the plaintiff wished to continue with conservative measures and it was arranged for the plaintiff to be referred to Professor Barry Rawicki for a pain management rehabilitation program.
19 The conclusion of the CT scan undertaken on 9 March 2007 was:
“At the L5/S1 level there is a mild and broad based posterior disc bulge which is slightly indenting the left S1 nerve root at this level. There is minimal thecal impression.
… .”
The conclusion of the MRI scan undertaken on 23 July 2007 is:
“Degenerate L5/S1 disc with mild generalised disc bulge and central posterior annular tear but no disc protrusion. This contacts but does not compress or displace the traversing S1 nerve roots bilaterally.”
(see pages 20 and 21 of Exhibit A).
20 On 19 February 2008, Dr Olenski notes that the plaintiff agreed to begin the rehabilitation program and at that time there was a two-month history of lowered mood, insomnia, anorexia and weight loss, together with ongoing constant left buttock and posterior left pain. At that time, Dr Olenski made a diagnosis of secondary depression due to chronic pain, and prescribed Efexor.
21 The plaintiff was referred to Professor Barry Rawicki, a pain and rehabilitation specialist, and was also referred to a physiotherapist (Shay McLeod) and Dr Brian Lovell of the Metropolitan Spinal Clinic.
22 In his report dated 5 May 2009, Dr Olenski was of the opinion that the plaintiff had suffered a “significant L5-S1 disc injury which will take a full five years to heal from the time of injury”. He also notes that a knee injury suffered in July 2008 caused by prolonged squatting had now “fully resolved”. In particular, Dr Olenski notes that the “secondary depression” had now “lifted” although he remained on anti-depressant medication. Ultimately, his prognosis for the depression will depend on the severity of his pain and his ability to regain new employment.
23 In relation to work capacity, Dr Olenski stated, at that time (May 2009):
“Finally I wish to reiterate that Bradley cannot return to his previous employment and he will be unable to take on heavy manual work in the future. He will also be limited by:
a) Prolonged sitting b) Repetitive flexing or twisting of the spine c) Heavy lifting d) Prolonged driving.”
24 In his report dated 17 September 2009, Dr Olenski reports that he has:
“… given Bradley a medical clearance to return to full time work, with obvious restrictions regarding his back problem. I have urged him to resume his retraining programs.”
(see page 29 of Exhibit A). (my emphasis).
25 In his final report dated 15 March 2010, Dr Olenski states, in part:
“An assessment was made on 10/11/08 by NES Vocational. They
suggested to Bradley he would be suited to the following jobs:
1. Car Park Attendant
2. Call Centre Operator
3. Security officer and guard.
Over the last 12 months Brad had been in a holding pattern. His lower back pain is well controlled, and he continues hydrotherapy. He remains on Efexor XR 225mg a day, for his secondary depression. He is frustrated however that he has been unable to participate in a retraining program. Unfortunately Bradley will be unable to take on heavy lifting work in the future, and employment will be limited by:
• Prolong[ed] sitting (more than 2 hours) • Repetitive flexing or twisting of the spine. • Heavy lifting. • Prolonged driving. He should continue with core stability work. I believe his depressive illness will lift once he obtains employment. I believe the long term prognosis for his lower back is good if he sticks with the ergonomic program.
Bradley remains on sickness benefits, and will need ongoing counselling and psychotherapy with myself (Dr Olenski). He continues to see Dr Barry Rawicki and will continue with hydrotherapy classes for the next few months. I believe his long term prognosis is good, however it is very important he returns to the workforce ASAP, and he should be reassessed for retraining through Workcover.”
(sic)
(see page 29a of Exhibit A)26 In about May 2007, Dr Olenski referred the plaintiff to Spinal Management Clinics of Victoria and in particular to the physiotherapist, Ms Shay McLeod. At his initial presentation, the plaintiff demonstrated signs of “significant psychosocial factors” (see report of Ms McLeod at page 39 of Exhibit 1), however, after attending a “functional restoration program”, Ms Shay noted significant improvement in his “illness behaviour” and “reasonable progress” in his level of function: (see page 40 of Exhibit 1).
27 The neurosurgeon, Mr Myron Rogers, examined the plaintiff on or about 1 August 2007, and on the basis of his clinical findings and the MRI conclusions, was of the opinion that the plaintiff’s:
“… problems are predominantly discogenic and will certainly be
associated with the changes seen at L5-S1.”(see page 37 of Exhibit A).
28 He gave the plaintiff the option of undergoing decompression surgery at L5-S1 or continuing in a conservative manner with perhaps an epidural injection.
29 The pain rehabilitation specialist, Professor Barry Rawicki, initially consulted with the plaintiff on 16 November 2007, at which time a diagnosis was made of discogenic back pain with radiating leg pain complicated by the development of “chronic pain behaviours with some non-organic features”: (see page 40 of Exhibit A).
30 A rehabilitation program was commenced in late March 2008, and on reassessment on 21 May 2008, Professor Rawicki notes that the pain was “better controlled”, he was “more flexible” and most of the non-organic features and chronic pain behaviours had resolved: (see page 40 of Exhibit A).
31 Professor Rawicki recommended a further eight weeks of pain management rehabilitation and ultimately, this was undertaken, with the plaintiff finishing the second program in or about September 2008. In particular, Professor Rawicki states:
“I reviewed him on 24 September 2008 and once again was generally pleased with his progress. His pain was mostly resolved although he still had some minor but significant pain. At that stage, I wrote to his Workcover provider recommending that he continue with some hydrotherapy and that we look at him undergoing a retraining program in non-physically demanding work. My opinion was that the retraining would be necessary as he had only ever worked in manual positions before but that he was intellectually certainly capable of managing a range of physically non-demanding tasks.”
(my emphasis)
(see page 41 of Exhibit A).
32 After review in November 2008, Professor Rawicki advised the agent of the defendant that the plaintiff could either work as a “car park attendant or call centre operator” but did not feel he could work as a security officer or guard.
33 In particular, Professor Rawicki states:
“My diagnosis is that Mr Saville has significant disc disease at L5/S1 associated with a work-related injury, that most of his pain is now resolved but that he is incapable of continuing with manual labour. He initially presented with significant non-organic features and these are now resolved.
My prognosis is that he is capable of returning to the paid workforce in physically non-demanding work and that he is capable of being retrained in such work. I believe that if he returns to heavy physical work he is at significant risk of further disc disease and disc prolapse.”
(my emphasis)
(see page 41 of Exhibit A).
34 Professor Rawicki referred the plaintiff to the clinical psychologist, Mr Frauke Boelsen, in March 2008, at which time he presented with:
“Significant depression, anxiety and an overall feeling of psychological
distress in the context of his work-related injuries.”
(see page 44 of Exhibit A).
35 In his report dated 1 September 2009 (see page 43 of Exhibit A), Mr Boelsen states, in part:
“… Since his initial presentation to me in March 2008 his mood has fluctuated from mildly depressed to severely depressed. I believe that his anxiety over his overall position is also reflected in his mildly obsessive-compulsive handwashing. Consistent with all medical notes and his previous history his physical injuries and subsequent impairment were caused by this work accident. His depression developed as a direct consequence. …
Mr Saville told me that he is keen to do retraining and find suitable employment. In my professional opinion, Mr. Saville’s depression should not prevent him from engaging in appropriate work. However, it will be important to involve Mr Saville in the choice of this future work options. For example, in the past it was suggested he could work in a call center. Both Mr. Saville and I are of the opinion that this type of position would be unsuitable to his skills and his needs. … .”
(sic)
(my emphasis)
(see page 49 of Exhibit A).
36 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following:
(a) The neurosurgeon, Mr Paul D’Urso, on 14 August 2009; and (b) The occupational physician, Dr Amanda Sillcock, on 29 July 2009. 37 In his report dated 18 August 2009 (see page 51 of Exhibit A), Mr D’Urso diagnoses the plaintiff to be suffering from:
“Lumbar disc degeneration with central prolapse.”
38 In particular, Mr D’Urso was of the opinion that the plaintiff had no capacity for his pre-injury work and that he has:
“… little capacity for any type of work for which he would have the skills
or ability to perform.”
(see page 52 of Exhibit A).
39 Mr D’Urso states, in part:
“I would be somewhat guarded in regard to Brad’s ability to regain capacity for employment. If he were to continue with medical management I would recommend a multidisciplinary rehabilitation program under the supervision of a rehabilitation consultant. The other option would be surgical intervention; lumbosacral fusion procedure has been recommended. If the surgery was followed with rehabilitation this could result in improvement in functional and employment capacity. Currently however, it would appear that Brad has limited motivation for either approach.”
(my emphasis)
(see page 52 of Exhibit A).
40 In her undated report, Dr Sillcock diagnoses the plaintiff has an L5-S1 disc lesion without radiculopathy with evidence of an annular tear. In relation to capacity for work, Dr Sillcock states (see page 58 of Exhibit A):
“I believe that the injury renders Mr Saville unfit to undertake pre-injury employment. I believe that he could undertake suitable employment that did not require heavy lifting and where he was able to stand or sit as required. Given that Mr Saville has now not worked for two years, I do not believe that he would be capable of working for more than 20 hours per week.
… .”
(my emphasis)
41 Counsel for the plaintiff also relies on the following medico-legal reports obtained by the solicitors for the defendant or other agents of the defendant:
(a)
report of the neurologist, Associate Professor John Balla, dated 16 December 2008; and
(b) report of Dr Brian Lovell of the Metro Spinal Clinic dated 29 March 2007. 42 In his report, Professor Balla asserts that the injury suffered by the plaintiff in February 2007 “is consistent with nerve root compression or irritation” and is related and due to “aggravation of degenerative changes in the lumbar spine”: (see page 5 of the Defendant’s Court Book). Further, Professor Balla is of the opinion that the plaintiff is unlikely to return to heavy physical work and at the time of his examination, was not fit for work and needed an appropriate rehabilitation program.
43 Dr Lovell notes that he examined the plaintiff on referral from Dr Olenski and considered that the back and leg pain suffered by the plaintiff was caused from a combination of discogenic and S1 radicular pain. At that time (March 2007), Dr Lovell sought permission to undertake a chordal epidural injection to relieve the pain.
44 The defendant, or its agent, arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) The general surgeon, Mr Timothy Gale, on 29 July 2008; (b) The psychiatrist, Dr Nigel Strauss, on 12 June 2008; (c) The general surgeon, Mr Peter Battlay, on 24 October 2007 and 12 June 2008; (d) The orthopaedic surgeon, Mr Ian Jones, on 22 April 2009; 45 The purpose of Mr Gale’s report was to provide an evaluation for permanent impairment under the AMA Guidelines. However, in the report dated 30 July 2008 (see page 7 of Exhibit 1), Mr Gale considered the plaintiff to have suffered damage to the disc at L5-S1 with no positive features of radiculopathy. At that time, he noted the plaintiff showed:
“… features of poor coping from a psychological perspective.”
(see page 8 of Exhibit 1).
46 In his report dated 12 June 2008 (see page 12 of Exhibit 1), Dr Strauss notes that there is:
“… little doubt that this man has suffered from an organic injury … .”
but that he:
“… has not coped particularly well from a psychological perspective with
his physical injury.”
(see page 15 of Exhibit 1).
47 Ultimately, Dr Strauss considered the plaintiff to be suffering from a:
“… Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood
secondary to his alleged physical injury.”
(see page 16 of Exhibit 1).
48 However, from a psychiatric point of view, he had no incapacity for work.
49 In his first report dated 26 October 2007 (see page 20 of Exhibit 1), in respect to his examination on 24 October 2007, Mr Battlay was of the opinion that the plaintiff had suffered a:
“… work-related disc strain, resulting in an L5/S1 disc derangement, with
a now resolved radiculopathy.”
50 At that time, Mr Battlay considered the plaintiff to have no current work capacity given his physical problems, and more particularly, his “florid illness behaviour”: (see page 23 of Exhibit 1).
51 When later seen on 12 June 2008, Mr Battlay considered that the plaintiff seems to have “improved” and was not as “injury focussed” as previously. He considered that the plaintiff had a capacity for work but it would be:
“… counterproductive for him to attempt a graduated return prior to the
completion of his rehabilitation program.”
(see page 19 of Exhibit 1).
52 In his report dated 23 April 2009 (see page 26 of Exhibit 1), Mr Jones diagnoses the plaintiff to be suffering from a:
“Lumbosacral disc disruption manifesting in some back pain and stiffness
and left buttock and posterior thigh pain.”
(see page 28 of Exhibit 1).
53 Furthermore, Mr Jones considered such injury to be arising out of or in the course of the plaintiff’s employment with the defendant.
54 In a subsequent letter dated 25 May 2009, Mr Jones states, in relation to the capacity of the plaintiff, that:
“a)
This man does not have the capacity to return to his pre-injury employment as a truck driver / labourer and I do not believe that he will recover to be able to undertake such employment.
b)
This man is not fit for his pre-injury employment and given his nature of his work as a driver / labourer it is unlikely that he would ever return to this type of employment even with restrictions.
c)
Mr Saville does have the capacity to undertake sedentary type employment of a clerical or semiclerical nature where there is no requirement to bend or lift. He will obviously need retraining to return to work in this capacity.”
(see page 25 of Exhibit 1).
Analysis of the Evidence
55 I find the plaintiff to be essentially a witness of truth. Indeed, Senior Counsel for the defendant accepted that the plaintiff had not “consciously set out to mislead the Court” but, “has a firm belief as to what he thinks is going on, but, on objective valuation, that may well not be borne out” (see T 71, L10-22).
56 Consistent with the evidence of all organic doctors, I find that the plaintiff has suffered a low-back injury during the course of his employment with the defendant and in particular on 27 February 2007. Further, I find that it is probable that the nature of such injury is some type of disc lesion at the L5-S1 level of the spine as demonstrated on the CT scan undertaken on 9 March 2007 and the MRI scan on 23 July 2007. With the possible exception of Professor Balla (who diagnosed the pain emanating from the L4-5 level), all the organic doctors are of the opinion that the plaintiff has suffered some degree of disc lesion causing pain particularly in the low-back and sometimes into the left leg.
57 Although Dr Olenski, in his reports dated 5 May 2009 and 17 September 2009, asserts that a significant L5-S1 disc injury takes “a full five years to heal from the time of injury”, I find, again based on the vast majority of organic doctors, that the plaintiff suffers a permanent impairment of his low-back as a result of “the injury”.
58 Although Professor Rawicki, Mr Battlay and Ms Shay McLeod all noted initially non-organic features (see respectively reports of Professor Rawicki dated 7 September 2009, at page 39 of Exhibit A; report of Mr Battlay, at page 23 of Exhibit 1; and report of Ms Shay McLeod dated 22 May 2007, at page 33 of Exhibit 1), current medical opinion suggests clearly that the plaintiff has organic symptoms resulting from his low-back impairment and I, accordingly, find that there are organic consequences flowing from the low-back impairment.
59 Senior Counsel for the defendants placed much emphasis in his address on the treatment by Professor Rawicki and, in particular, highlighted that such treatment brought about a significant reduction in the symptoms suffered by the plaintiff. Indeed, the treatment by Professor Rawicki would appear to have been extremely successful but it is to be noted that even he accepts that there is a disc injury at the L5-S1 level and that the plaintiff only has a capacity for “physically non-demanding work”: (see report dated 7 September 2009, at page 39 of Exhibit A).
60 Other consequences suffered by the plaintiff include experiencing backache which is “always there” which is relieved to some extent by medication and the back brace which was recently purchased. Such pain “flares-up” when the plaintiff leans forward, lifts anything, drives for too long or is sitting for more than about thirty minutes. The plaintiff continues to undergo hydrotherapy and attends his general practitioner, Dr Olenski, in order to obtain Panadeine Forte (of which he takes three or four a day) and also Anaprox and Efexor for his depression, together with the occasional Temazepam.
61 I accept that the discal injury suffered by the plaintiff with its resultant impairment and pain consequences, does impact on the ability for the plaintiff to enjoy his surfing activities. Senior Counsel for the defendant described making such a finding as “fanciful” (T 106, L25-L30).
I reject such submission, I accept the evidence of the plaintiff that prior to the injury, he was a fit and healthy young man who regularly attended the west coast beaches of Victoria to engage in surfing, utilising one of a number of boards that he owned. Notwithstanding the absence of specific medical evidence on the issue, I accept his evidence that he is unable to perform such activity after his injury.
I note that the doctors put limitations on the activities to be undertaken by the plaintiff and in particular, activity involving frequent bending, lifting and/or twisting, all of which surfing would encompass. I also note that the plaintiff complains that his musical activities and walking have been affected to a lesser extent by his low-back injury.
62 On balance, I find that the consequences to the plaintiff of his low-back impairment in relation to “pain and suffering” and/or “loss of earning capacity” “when judged by a comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked and as being at least very considerable”: (see s.134AB(38)(b) and (c) of the Act).
63 Accordingly, I find the plaintiff has discharged his onus to satisfy the narrative test in relation to pain and suffering and loss of earning capacity consequences.
64 The next issue is whether the plaintiff has also discharged his onus in satisfying s.134AB(38)(e) of the Act.
65 Paragraph (e)(i) requires the plaintiff to establish that, as at the date of the hearing of the application, he “has a loss of earning capacity … of 40 per centum or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:
(a) the income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and (b) the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”). In both cases, the income is limited to gross income from personal exertion and is to be annualised.
66 Paragraph (e)(ii) requires the plaintiff to establish that he will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more”.
67 In relation to the “without injury” earnings, I refer to page 16 of Exhibit A, which is a summary of the taxation returns of the plaintiff. For the year ending 30 June 2004, he had gross earnings of $18,422.00; for the financial year ending 30 June 2005, he had gross earnings of $43,937.00; for the financial year ending 30 June 2006, he had gross earnings of $58,932.00 and for the financial year ending 30 June 2007, he had gross earnings of $57,472.00.
68 It is to be remembered that the plaintiff commenced direct employment with the defendant in about 2005 and suffered injury, in particular, on 27 February 2007.
69 Counsel for the plaintiff urges me to find “without injury earnings” to be $58,932.00, being those earnings for the year ending 30 June 2006: (see T90, L23-27).
70 The defendant did not put a submission as to what is the appropriate amount for the “without injury earnings”: (see T64, L19 – T65, L27).
71 I find, consistent with the submission of the plaintiff, that the “without injury earnings” of the plaintiff is $58,932.00. Sixty per centum of the “without injury earnings” amounts to $35,359.20.
72 All doctors are of the view that the plaintiff is incapable of performing the type of work that he was performing with the first defendant prior to his injury. However, all doctors, with the possible exception of Mr D’Urso, consider the plaintiff capable of performing a variety of light alternative work. In particular, the treating general practitioner, Dr Olenski, and the treating rehabilitation specialist, Professor Rawicki, are clearly of the view that the plaintiff has a capacity for light work, some of which may involve re-training, but should not return to heavy physical work. Indeed, Senior Counsel for the plaintiff accepted that the plaintiff was fit for suitable employment and the critical issues were how many hours a week he could work and the relevant rate of pay: (see generally T102, L26 – T103, L21).
73 Mr D’Urso, although of the opinion that the plaintiff had no capacity for his pre- injury employment, considered that at present, without any re-training, the plaintiff would have little capacity for work, but notes that currently however “it would appear the Brad has little motivation for … to pursue a multi-disciplinary rehabilitation program or undergo surgery”.
74 After considering all of the evidence, and in particular, taking into account the relatively young age of the plaintiff, his presentation in Court, and the nature of his low-back injury, I find that the plaintiff has a capacity for suitable employment albeit in some circumstances, with the aid of re-training.
75 The defendant relies on, in part, the Labour Market Analysis Report from Co Work Pty Ltd dated 23 June 2009 (see page 94 of Exhibit 1). Such report is authored by Ms Joanne Bryant, said to be an occupational therapist. In particular, I set out the Summary of earnings report for recommended job options for workers aged thirty to thirty-four years contained in that report. It is to be noted that the hourly rate is calculated on a 37-hour week:
Occupations Ave Weekly Ave Hourly Training Required Cost of
Earnings Rate Training
(gross) (gross)
Car Park $725 $19.59 No minimum - Attendant education required Call Centre $785 $21.21 No training - Operator required Security Officer $1051 $28.40 Certificate II in $1600 Security
InvestigationsSpare Parts $880 $23.78 (Not mandatory) Maximum Interpreter Certificate III in of $3000 Automotive (Sales
– Spare Parts)Truck Driver $921 $24.89 Certificate IV in Approx Trainer Assessment and $2500 Training
76 Ms Bryant ultimately opines that the plaintiff would have a capacity to work as a security officer, preferably in a control room or surveillance environment and that in order to undertake such work, he would have to complete a full-time three-week training course. However, it was her opinion that it was “unlikely” that the plaintiff would succeed or gain any satisfaction from working as a car park attendant or a call centre operator: (see page 99 of Exhibit 1). Seemingly the major reasons for advising against work as a car park attendant or a call centre operator is the “lack of satisfaction” attached to each job, although Ms Bryant raises the issue of prolonged sitting in performing work as a car park attendant.
77 Senior Counsel for the defendant submitted:
(a) That just because a defendant might identify “three, four or twenty-four jobs” that should not be seen as the confines of the plaintiff’s work capacity. It is for the plaintiff to discharge his onus to establish that he has the requisite loss of earning capacity as required by the Act. (b) That although he may be incapable of performing manual labour, there is “a whole world outside of manual labour” and the plaintiff has not made any real bona fide attempt to get himself rehabilitated: (see T53, L28 – T54, L4). 78 Although it is clear that the plaintiff has the onus to discharge the requirements of s.134AB(38)(e) and (g) of the Act, I am of the view that the Act does not contemplate a worker being required to discharge his or her onus by establishing that he or she is incapable of performing each and every job in the labour market at large. However, I do accept that the onus may well be more difficult for a younger worker who, through re-training and/or rehabilitation, can make the transition to alternative work compared to an older worker who has worked in one occupation for many years. The definition of “suitable employment” contained in s.5(1) of the Act also, in my view, limits the field when determining what is “suitable employment” for any particular worker.
79 Senior Counsel for the plaintiff refers to the two reports from Flexi Personnel dated 1 July 2009 and 26 October 2009: (see respectively pages 62 and 65 of Exhibit A).
80 In particular, the document dated 26 October 2009 sets out the current gross base hourly rates for the following positions:
(a)
Car park attendant – $15.11 per hour pursuant to the Car Parking (Victoria) Award 2004;
(b)
Call or contact centre operator - $15.89 per hour pursuant to the Contract Call Centre Industry Award 2003;
(c)
Security officer/guard - $15.74 per hour pursuant to the Security Employees (Vic) Award 1998.
81 Senior Counsel for the plaintiff urged me to adopt such hourly rates rather than the average hourly rates referred to in the Co Work Pty Ltd ‘Labour Market Analysis Report’. It was submitted that the lesser rates should be applied, as the average weekly amounts are unclear as to whether or not they include overtime, shift allowances or “any of those sort of things”: (see T93, L26-30).
82 Considering that the summary of earnings report contained in the Co Work Pty Ltd document dated 23 June 2009 is in respect for workers aged thirty to thirty-four years, and is calculated on a thirty-seven-hour week, I tend to the view that such rates should be applied.
83 After considering all of the evidence, and, in particular, the evidence of the treating doctors, Dr Olenski and Professor Rawicki, I find that the plaintiff has a capacity for full-time light work which may require some re-training in certain circumstances, and in particular would encompass work as a car park attendant and/or a call centre operator. Translating the weekly gross amount set out in the Co Work Pty Ltd document to an annualised amount, a car park attendant would earn $38,729.00 per annum and a call centre operator, $41,910.96 per annum.
84 Such “after injury earnings” are greater than $35,359.30 and accordingly, I am not persuaded the plaintiff discharges his onus pursuant to s.134AB(38)(e)(i) of the Act.
85 Furthermore, again bearing in mind the age of the plaintiff, and the various options for vocational re-training, I am not satisfied that the plaintiff will, after the date of hearing “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more”.
Conclusions
86 Accordingly, I grant leave pursuant to s.134AB(16)(b) of the Act for the plaintiff to bring common law proceedings to recover “pain and suffering damages” for an injury to his low-back during the course of his employment but in particular, on 27 February 2007.
87 I will hear the parties on the question of costs.
- - -
0
5
0