Singh v Skilled Recruitment
[2014] VCC 351
•11 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-03511
| MANVIR SINGH | Plaintiff |
| V | |
| SKILLED RECRUITMENT | First Defendant |
| & | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 March 2014 | |
DATE OF JUDGMENT: | 11 June 2014 | |
CASE MAY BE CITED AS: | Singh v Skilled Recruitment & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 351 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application for leave to recover damages for loss of earnings –compensable injury to the plaintiff's lumbar spine and pain and suffering claim was conceded – dispute as to whether loss of earnings consequence was serious
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon SpinnersPty Ltd&OrsvPodolak (2005) 14 VR 622, Giankosv SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Plaintiff’s application is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. R. P. Gorton QC with Mr M. Ruddle | Victorian Compensation Lawyers |
| For the Defendant | Mr. S. A. Smith | Lander & Rogers |
HER HONOUR:
Introduction
1 The plaintiff is 28 years of age and married. In 2006, whilst a single student living in India, the plaintiff obtained a Bachelor of Computer Application. On arriving in Australia in 2007, the plaintiff’s ambition had been to work in the IT industry.[1] This remains his ambition. He does, however, have other qualifications, namely a Certificate III in Security Operations obtained in March 2007 and a Diploma of Community Welfare Work obtained in 2008.
[1]Transcript (TN) 18-19
2 From about August 2007, the plaintiff was employed by recruitment agency, Catalyst (which later merged with the defendant, Skilled Recruitment). Initially, the plaintiff was assigned to Oates Cleaning where he assembled cleaning products. After some 18 months, the plaintiff was assigned to work as a casual labourer at the Melbourne airport gift shop, First Duty Free.
3 In an affidavit sworn 14 March 2012,[2] the plaintiff deposed to having performed duties, which involved unloading and moving up to 50 to 60 boxes per day of alcohol. In short, the plaintiff described duties involving strenuous activity and repetitive manual handling of boxes of alcohol. The plaintiff further deposed to working between 36 and 38 hours per week, although he was, he said, prepared to work any additional hours or overtime offered.[3]
[2]Exhibit P1, Plaintiff's Court Book (PCB) 13
[3]PCB 18
4 The plaintiff suffered compensable injury to his lumbar spine, in particular on 11 December 2009, in the course of his employment with the defendant. The circumstances in which he sustained injury were described by him in the following terms:[4]
“11. On or about 11 December 2009 I was working at a warehouse at Tullamarine Airport for the host company First Duty Free. I had been directed to unload heavy boxes of alcohol from a trolley onto the floor. As I was doing so I experienced a sharp pain that extended from my left hip down to my left leg (the incident). The pain initially subsided a little but after I went home, I work in the early hours of the next morning with my whole body feeling stiff. I was also experiencing severe pain in my back and left leg.”
[4]PCB 14
5 The plaintiff sought treatment from general practitioner, Dr Kazi on 12 December 2009. The doctor ordered a CT scan of his patient’s lumbar spine. On 14 December 2009, the scan relevantly identified a prominent L5/S1 disc protrusion.[5]
[5]PCB 31
6 The plaintiff was next referred to neurosurgeon, Prof Teddy. MRI investigation on 10 February 2010 reported evidence of a moderate left paracentral L5/S1 disc extrusion compressing the left S1 nerve within the subarticular recess, productive of a mild to moderate central canal stenosis.[6]
[6]PCB 32
7 On 25 February 2010, Prof Teddy performed a left L5 laminectomy and L5/S1 discectomy, fat graft and rhizolysis. Surgery apparently only relieved leg pain for some months.
The Application
8 By originating motion filed on 20 July 2012, the plaintiff sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
9 The application was made under paragraph (a) of the definition of serious injury, namely, serious permanent impairment or loss of function of the plaintiff's lumbar spine.
10 “Permanent” refers to impairment of the plaintiff’s lumbar spine that is: "likely to last for the foreseeable future".[7]
[7]Barwon SpinnersPty Ltd&OrsvPodolak (2005) 14 VR 622 [33]
11 The determination of whether the injury was “serious’’ is assessed by reference to the consequences to the plaintiff of impairment of his lumbar spine. These would not meet the test unless the pain and suffering consequence and/or the loss of earning capacity consequence are when judged by comparison with other cases in the range of possible impairments or loss of a body function, “fairly described as being more than significant or marked, and as being at least very considerable”.[8]
[8]Section 134AB(38)(c)
12 The defendant conceded compensable injury to the lumbar spine and further conceded the pain and suffering component of the application.[9]
[9]TN 2
13 The plaintiff was, nonetheless, required to meet the test in respect to the loss of earning capacity claim and to discharge the further burden imposed by section 134AB(38)(e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. He was also required to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[10]
[10]Sections 134AB(19)(b) and (38(g)
14 It was agreed at hearing that, for the purposes of the Act, the sum that most fairly represented the plaintiff’s without injury earnings figure was $490 gross per week. This translated to a sum of $25,480 gross per annum.[11]
[11]TN2-3
15 Section 5(1) of the Act defines “suitable employment” such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market. “Suitable employment” means employment in work for which the plaintiff is currently suited having regard to a number of factors. These include the nature of the plaintiff’s incapacity and the details provided in the medical information, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence, any documents relating to the return to work process and any occupational rehabilitation services provided.
16 The plaintiff would not establish the requisite loss of earning capacity, where after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and training, he has a capacity for employment which, if exercised, would result in him earning more than 60% of the without injury earnings as determined in accordance with section 134AB(38)(f). In this case, earnings from personal exertion of $15,288 or more gross per annum would take the plaintiff over the threshold.
17 The plaintiff has the onus of proving all of the matters mentioned including proving on the balance of probabilities that no suitable employment exists in which he could earn 60% or more of the agreed without injury earnings figure. The decision of the Court of Appeal in Giankosv SPC Ardmona Operations Ltd[12] is, however, authority for the proposition that there may be circumstances in which the evidentiary onus shifts to the employer to adduce evidence of suitable jobs in existence. In that case, it was incumbent on the employer to advance some evidence of suitable jobs in existence in the Mooroopna or the surrounding area which the worker, a 58-year-old was able to perform despite his shoulder impairment where:
· the plaintiff had established that he was unable to do forklift work or other jobs which required him to raise his arm above his shoulder; and
· the two forklift driving jobs available in the Mooroopna area for which the employer had indicated the plaintiff would not be rehired were not real jobs and did not constitute suitable employment.[13]
[12][2011] VSCA 121
[13]Ibid paragraphs 114-116
18 As mentioned, the plaintiff has a tertiary Degree and the Certificate and Diploma obtained by him since his arrival in Australia. Under cross-examination, the plaintiff agreed, firstly that he had the physical and intellectual capacity to complete further tertiary education (Masters studies) and training to qualify for work in the IT industry, in particular in software development[14] and, secondly that, subject to renewal of his licence, he was qualified to work in security.
[14]TN 18-19 and 24
19 As my summary of the medical evidence shows in due course, of the treating doctors, only the general practitioner’s evidence addressed the plaintiff’s retained capacity for employment. Dr Kazi and most of the medico-legal specialists identified a retained capacity to perform suitable employment with restrictions on lifting and so forth, whilst most of the doctors also recommended restrictions on the hours worked (either 12 hours over alternative days or 20 hours per week over consecutive days).
20 None of the medical evidence specifically addressed the issue of whether with further study/training, employment existed in the IT/software industry which represented suitable employment for this plaintiff. The evidence of the rehabilitation services provider did, however, record that in September 2011 the plaintiff had expressed interest in working in a Sales Representative role within the IT industry.
21 It was submitted on behalf of the plaintiff that, even with further study/training, no employment existed in IT/software (or for that matter in any of the other occupations discussed by some of the doctors and the rehabilitation service provider) that accommodated the restrictions imposed or any potential unreliability in the plaintiff’s attendance for work due to his symptoms.
22 Relevantly, the defendant did not concede that, if the plaintiff was fit for only part-time light work, whether for 12 hours or 20 hours per week, the plaintiff met the test under the Act.[15]
[15]TN 3 and 65-66
The evidence called and tendered
23 The plaintiff attested to the accuracy of two affidavits sworn on 14 March 2012 and 24 March 2014, respectively. He was cross-examined at length.
24 The plaintiff and the defendant tendered extracts from their respective Court Books. The material tendered by the plaintiff consisted of multiple reports of radiological results, reports from the treating doctors and medico-legal specialists and multiple Certificates of Capacity provided by Dr Kazi on various dates for the period between 12 December 2009 and 24 March 2014.
25 In addition to reports from medico-legal specialists,[16] the defendant tendered two New Employer Services (NES) reports from the Plaintiff’s Court Book - a Vocational Assessment report prepared by rehabilitation service provider, ipar on 1 September 2011[17] and a Week 16 Job Seeker Plan completed between 11 November 2011 and 23 February 2012.[18]
[16]Exhibit D1, Defendant’s Court Book (DCB)
[17]Exhibit D2, PCB 112-125
[18]Exhibit D3, PCB 136-140
26 There was no serious challenge to the plaintiff’s credit. His evidence, however, concerning his current capacity to engage in any employment was contradictory. For instance, despite the majority of the doctors reporting a capacity for light work with restrictions, during the hearing the plaintiff both asserted he had no current capacity for any work, yet also acknowledged a capacity for part-time light work with appropriate restrictions if this work were available.[19] I was left with the impression that the plaintiff believes the former and his subjective belief that he is totally incapacitated for all work is the main barrier to him exercising any physical capacity in suitable employment. I will discuss this evidence in more detail shortly.
[19]As for example, at TN 37-39
Treatment post-surgery and return to work
27 Among other things, the plaintiff’s evidence, Dr Kari’s clinical records and the Certificates of Capacity show a return to modified duties between 5 July and 15 October 2010, with restrictions on lifting (no more than 2 kg), sitting, walking and driving (no more than 40 minutes) and on repeated bending.[20]
[20]The plaintiff’s first affidavit, PCB 16 and 18 and PCB 44 and 159-166
28 In his first affidavit, the plaintiff described the modified duties performed as “sheltered clerical duties”.[21] In re-examination, the plaintiff said these were light duties packing small boxes of cosmetics. This work, apparently, allowed him to sit, stand and walk at will.[22] However, the plaintiff said he ceased work because, prolonged periods of sitting had caused unbearable pain in his back and left leg and caused him to miss some 8 to 10 days from work.[23]
[21]PCB 18
[22]TN 45
[23]PCB 19 and TN 45-46
29 Further MRI investigation, ordered by Prof Teddy on 30 August 2010, relevantly indicated a marked decrease in the volume of residual central-left paracentral disc at L5/S1, although there remained some persisting thecal sac indentation anteriorly and possible contact but not compression of the traversing left-sided S1 nerve. This imaging also suggested that the L5 nerve exited without specific local indentation or compression.[24] Accordingly, whilst surgery had reduced the appearance of compression of the left S1 nerve, there remained a small volume of residual disc extrusion at the site, which raised the possibility of ongoing irritation of the S1 nerve root.
Under cross-examination, the plaintiff confirmed that, as recorded by general surgeon, Mr Brearley in July 2013, after ceasing work with the defendant in 2010, he had applied for suitable light jobs without success.[25]
The plaintiff’s evidence was unclear as to when these applications were made. He, nevertheless, told the Court that he had applied for a few casual, light packing warehouse jobs for 15 to 20 hours per week. Whilst the plaintiff at first sought to resist this proposition, I have accepted that when he made these applications, the plaintiff probably believed he was capable of attempting these hours and duties.[26]
[24]PCB 33
[25]Mr Brearley’s report, PCB 62 and TN 34
[26]TN 35-36
30 Dr Kazi’s report and the clinic’s records show that, from late October 2010, the plaintiff’s reports of ongoing pain[27] had prompted Prof Teddy to refer the plaintiff for pain management. The plaintiff reported only short-term relief from injections administered by Dr Courtney in 2010 and, after six months of rehabilitation at the Dorset Rehabilitation Centre (reportedly completed on 15 June 2011[28]), he continued to report back pain radiating into the left leg.
[27]PCB 39 and 44
[28]Exhibit D1, Defendant’s Court Book (DCB) 9
31 Occupational physician, Dr Davison, examined the plaintiff at the request of the insurer on 12 August 2011.[29] The report is more than two years old. However, the opinions expressed by the occupational physician in this and his later report remain relevant to my understanding of the plaintiff’s current physical capacity for suitable employment and/or occupational retraining and to my determination of whether the plaintiff has proved that no suitable employment existed in which he could earn 60% or more of the agreed pre-injury earnings figure. The salient parts of the report are summarised as follows;
[29]DCB 6-17
Ø The plaintiff reported constant central/left-sided lower back pain (“ache like and dull in nature”[30]). He also reported a burning pain extending from the left buttock down the posterior aspect of the left thigh/calf to the foot with sensory disturbance involving the left foot. Notably, clinical examination had revealed what Dr Davidson concluded were mild pain behaviours (Waddell’s signs were positive for light touch and apparent spinal movement with subjective alteration to sensation in the left leg below the knee in a stocking distribution);
[30]DCB 7
Ø Passive therapies (physiotherapy or hydrotherapy) had ceased. The plaintiff’s regime consisted of daily pain relief medication (paracetamol once or twice), walking twice daily, performing some stretching exercises, using a hot pack and occasional use of the sedative, temazepam. Notably, Dr Davison considered this management of the condition appropriate. At the time, he predicted ongoing use of some form of analgesia over the medium term;
Ø The plaintiff reported tolerances involving a sitting capacity of 20 to 30 minutes depending on the type of chair, a walking/standing capacity of 15 to 20 minutes and a driving capacity of up to 40 minutes. He apparently avoided heavy lifting. As events later transpired, Dr Davison’s opinion that the tolerances described demonstrated a capacity to participate in occupational rehabilitation services was shown to be correct. Notably, similar tolerances for particularly sitting were reported by the plaintiff to a number of specialists who examined the plaintiff in the latter part of 2013;[31]
Ø In Dr Davison’s opinion, whilst the plaintiff was unfit for his pre-injury duties, he was capable of undertaking suitable employment and would benefit from a resumption of work. In short, Dr Davison advocated working four hours per day, on alternate days, three days per week with a gradual increase in the hours worked by 30 minutes per day each week. He recommended restrictions on manual handling to less than 5 kg in force or weight, with the opportunity for the plaintiff to vary posture regularly and at will and employment which allowed the plaintiff to avoid frequent or sustained bending or twisting. Save for the proposal to gradually increase the hours worked, the restrictions nominated by Dr Davison were probably the most comprehensive restrictions imposed by any of the doctors.
[31]See Dr Sutcliffe’s report of 7 August 2013, PCB 69-81 and Mr Kossman’s report of 3 September 2013, PCB 82-90
32 Medical opinions differ as to the hours the plaintiff could work. Nevertheless, the opinion expressed by Dr Davison in 2011 that, subject to the range of restrictions mentioned the plaintiff had a retained capacity for work, accords with the recent evidence of all but one of the medico-legal specialists and with the general practitioner’s evidence. The latter includes the content of the latest Certificate of Capacity issued by him. I will discuss the certificates tendered in more detail shortly. For the time being, however, I note that between 11 November 2011 and 6 March 2012, Dr Kazi certified the plaintiff fit for modified light duties, four hours per day on alternate days with restrictions on lifting (less than five kg).[32] This Certificate made no mention of any allowance to vary posture regularly and at will or placed any specific restriction on frequent or sustained bending or lifting.
[32]PCB 195-204
The NES material
33 It is convenient to interpose my discussion of the NES material at this juncture. As mentioned, on 1 September 2011 ipar undertook a Vocational Assessment. [33] The Vocational Assessment was undertaken at the request of the insurer.
[33]Exhibit D2
34 When assessed by ipar the plaintiff apparently reported he was performing home-based exercises and taking two Panadeine Forte tablets daily. The assessment included a skills audit. Whilst the plaintiff did not recall reporting all of the skills noted in the report, I was satisfied that he probably had, as reported, relevantly identified skills across a range of non-physical activities such as in communication, clerical/administration, the use of computers, retail, store/warehousing work and process/manufacturing work.
35 As recorded, during discussion of the plaintiff’s employment goals with ipar, among other things, he indicated an interest in pursuing employment in the computer industry, once he had saved sufficient funds to finance a Masters in Computers course and, as earlier mentioned, he indicated his interest in working in a Sales Representative role within the IT industry. During this discussion the plaintiff apparently also explained that the Community Welfare Diploma was completed in 2008 only as a means of obtaining residency in Australia and indicated no current vocational interest in working in community welfare.
36 Occupations identified by ipar as suitable employment options in September 2011 included work as a Security Officer (subject to the plaintiff obtaining the required licence), as a Sales Representative, as a Packer (light duties) and as a Courier. The report specifically indicated that both full-time and part time employment had been advertised in each of these occupations.
37 As I understood the ipar report, the assessment and the recommendations made had allowed for the matters raised by Dr Davison in his medical report. This suggested to me that each of the occupations recommended, were considered capable of satisfying the restrictions mandated in Dr Davison’s report, including a return to part-time work with a gradual increase in the hours worked.
38 The supplementary report from Dr Davison, dated 20 September 2011, helped reinforce this conclusion. In this report, he advised that provided the physical restrictions recommended could be adhered to, Dr Davidson considered the plaintiff capable of engaging in the employment to which the ipar assessment referred.[34] Without specifying the sorts of duties involved and subject to compliance with the physical restrictions already outlined, Dr Davison further indicated that work as a Console Operator at a service station and other sales positions were suitable options.
[34]DCB 18
39 The defendant submitted that all of the occupations identified in the ipar report constituted suitable employment and, if undertaken full-time or for 20 hours per week the plaintiff’s gross earnings would exceed the statutory threshold for establishing a permanent loss of earning capacity.[35] On the salary reported, working as a Sales Representative for 12 hours per week on alternate days, whether or not this was in the IT/software industry, would also take the plaintiff over the threshold.
[35]TN 65
40 In 2011, the plaintiff had indicated a willingness to pursue the employment options identified by ipar. To this end, arrangements were made for the plaintiff to participate in the NES 16 week program commencing from 11 November 2011.[36] As mentioned, between 13 November 2011 and 6 March 2012 Dr Kari certified the plaintiff fit for light duties, four hours per day on alternate days three days per week, with lifting restricted to less than 5 kg.[37]
[36]Exhibit D3
[37]PCB 195
41 The report made following the completion of the program appears to have been copied to the plaintiff and the general practitioner. Among other things, this report confirmed that, between November 2011 and February 2012, the plaintiff attended appointments with ipar and received training and support in job seeking.
42 Importantly, whilst the plaintiff could not recall the jobs for which applications were submitted,[38] he agreed he had applied for various positions, before conclusion of the program and, as recorded, he may have applied for a position with Makesafe Security as a control room operator.[39] The plaintiff also agreed that he had been offered employment as a Security Officer with Corsec Security. The offer of employment was subject to the plaintiff obtaining his security licence, which was delayed because the plaintiff reported difficulty in obtaining a second referee.
[38]TN 39-41
[39]TN 41 (I infer this was probably the sort of passive security work orthopaedic surgeon, Mr Dooley considered the plaintiff fit to perform part time after he examined the plaintiff in December 2013)
43 At hearing, the plaintiff argued that, without evidence of jobs that allowed for the combination of restrictions imposed by doctors and any unreliability in his attendance for work, as was the case during the latter part of 2010, none of the occupations mentioned constituted suitable employment.[40] I was urged by the plaintiff’s counsel to find, for example, that employment of any kind in the security industry was unsuitable. The plaintiff’s oral evidence in this regard was to the following effect:[41]
[40]TN 67
[41]TN 26-34, 36-37 and 45-47
· the Certificate III only qualified him to work in unarmed security;
· he agreed that he was qualified to perform security work which involved sedentary duties such as monitoring CCTV cameras et cetera but he could not, he said, perform work which required prolonged sitting, including sitting at intervals, even where there was freedom to sit or stand as needed;
· he was uncertain about whether he could do monitoring work for four or five hours even where he was permitted to sit and stand at will. This uncertainty was, the plaintiff said, partly informed by the difficulty experienced when performing modified light packing duties for Skilled Recruitment in 2010 for four hours per day on three alternate days per week;
· as recorded in the clinic’s records, on 29 January 2012 his general practitioner had encouraged him to seek security work;[42]
· whilst he had eventually obtained the requisite licence, he had not pursued the position offered by Corsec Security in 2012, because it required standing at a V/Line Station for 12 hours per day. I had difficulty reconciling the plaintiff’s evidence about the hours and duties offered by Corsec with the evidence in the Job Seeker Plan report which also indicated that Dr Davison’s assessment of the plaintiff’s work capacity had been considered in the process of providing job assistance and sourcing and saving positions for the plaintiff;[43]
· the three part-time positions in security identified in the NES Vocational Assessment had all involved working part-time, five days per week. As mentioned earlier, there is evidence that, in July 2013, Mr Brearley considered the plaintiff fit for light work, four hours per day, for five days per week.[44] Based on the answers given during cross-examination, I concluded that, having at first indicated that his doctors suggested he perform these hours, it was probably the plaintiff, not the doctors who felt that he could not cope with four hours (or more) per day for five consecutive days in any position.[45] However, the plaintiff also said that he had discussed trying these hours with Dr Kazi, who strongly advocated that he only work alternate days.[46]
[42]PCB 47
[43]Exhibit D3, 137
[44]PCB 64-65
[45]TN 34 and 41-43
[46]TN 37
44 In 2012, the plaintiff’s condition remained symptomatic. He was next referred to consultant neurosurgeon, Mr Han, who saw him on 7 March 2012.[47] During this attendance, the plaintiff reportedly described improvement in low back pain, resolution of left thigh pain but persistent left calf pain and left great toe numbness, with very occasional right-sided signs when the pain was at its worst.
[47]PCB 53.1
45 A repeat MRI scan on 2 May 2012 revealed, what Mr Han described as a fairly small disc herniation at the L5/S1 level without evidence of compression of the exiting nerve roots (“The appearance is similar to the MRI scan of 2010. Nevertheless, it appeared that there had been dehydration and degeneration of the L5/S1 disc and this could exert compression onto the nerve root”[48]).
[48]PCB 34-35 and 53.4
46 The management options discussed with the plaintiff at the time included putting up with the pain, in the hope that it would improve with the passage of time or undergoing epidural injection or possibly lumbar fusion surgery. In his supplementary affidavit, sworn on 24 March 2014, the plaintiff explained that he was fearful of further surgery because he considered the earlier surgery had been unsuccessful.[49]
[49]PCB 19.2
47 In his first affidavit, the plaintiff deposed to experiencing depressed moods and increased frustration and irritability since the onset of his injury.[50] It appears that from about May 2012, the general practitioner commenced treatment for depression (psychological disturbance), which he believed was secondary to pain.[51]
[50]PCB 16
[51]PCB 41 and 48-49
48 Having opted to undergo an epidural injection, the plaintiff did not present for this procedure. The plaintiff’s evidence suggests that reliance on financial support from his family in India following cessation of weekly payments in June 2012, may have contributed to this decision.[52]
[52]TN 8 and PCB 19.2
49 The plaintiff was, he deposed, a non-resident and ineligible for Centrelink payments. He gave evidence to the effect that since October 2012 he had returned to India twice. On the first occasion, the plaintiff said he returned with pain killing medication, which he took regularly until his return to Australia in June 2013, some months before the hearing of this application, which was initially listed in September 2013. The next visit to India prior to the hearing in March 2014 covered the period between December 2013 and 18 March 2014.
50 The extracts from the clinic’s records attached to Dr Kazi’s report indicate that on 28 September 2012, the last recorded attendance before the plaintiff left for India, the plaintiff was treated for both kidney stones and back pain. Strong pain killing medication, Panadeine Forte and Endone and a sedative, Temaze were prescribed, although the record made did not also record prescription of extra quantities of these drugs.
51 Accordingly, without more, I could not be satisfied that, whilst the plaintiff was living overseas the quantity of prescribed pain killing and sedative medication had been sufficient to sustain regular consumption of this medication before his return to Australia in June 2013.[53] This is not to deny that the plaintiff probably had, from time to time, required pain killing and sedative medication as a result of his lower back condition while living in India.
[53]PCB 50
52 When next seen by Dr Kazi, on 28 June 2013, the plaintiff again reported back pain.
53 On 18 August 2013, the plaintiff complained of daily back pain radiating into the left leg. He was referred by Dr Kazi to orthopaedic surgeon, Mr Wilde.
54 When Dr Kazi prepared his report in September 2013, the plaintiff had not yet seen Mr Wilde. As reported, Dr Kazi diagnosed chronic lower back pain radiating to the left leg caused by the work-related disc protrusion at the L5/S1 level.
55 In this report, Dr Kazi stated that his patient had been unfit for any work since 1 September 2010. The Certificates of Capacity issued from time to time, however, tell a different story. They indicate a physical capacity for part-time, light work with restrictions on lifting and, in more recent times, on repeated bending, for four hours per day on three (alternate) days per week.
56 For instance, the Certificates of Capacity issued by the general practitioner since November 2011, indicated the following:
· between 11 November 2011 and 6 March 2012, the plaintiff was certified fit for part-time, light duties with restrictions on lifting;
· he was next certified unfit for work between 6 March 2012 and 3 June 2012 and, as we now know, he was absent overseas between October 2012 and June 2013;
· on 6 November 2013 the plaintiff was certified fit for modified duties, four hours per day, three days per week with restrictions on lifting and repeated bending between 27 August and 25 November 2013; [54]
· on 8 December 2013 the plaintiff was certified fit for modified duties, four hours per day, three days per week with restrictions on lifting and repeated bending between 26 November 2013 and 24 January 2014.[55] However, it is unlikely that the plaintiff actively sought employment during part of this period because, as he deposed, he was again absent overseas between December 2013 and 18 March 2014.[56]
· on 24 March 2014, the general practitioner certified the plaintiff fit for part-time modified duties (“No heavy lifting more than 5kgs, no repeat bending 4 hours per day, 3 days per week”) between 25 January 2013 and 24 March 2014. [57]
[54]PCB 210.1
[55]PCB 210.3
[56]PCB 19.2
[57]PCB 210.5
57 At the date of making his final report, in Dr Kazi’s opinion, the plaintiff was permanently unfit for unrestricted manual or pre-injury work. His prognosis was, the doctor said, uncertain because surgery, injections and physiotherapy had not led to significant improvement in back and left leg pain.[58]
[58]PCB 40-41
58 The defendant submitted, correctly in my view, that the general practitioner’s final report (and by inference the Certificates of Capacity issued from time to time) had not specifically addressed the performance of sedentary duties by the plaintiff. His evidence, however, indicated a belief on the doctor’s part that, despite the difficulties experienced by the plaintiff when he performed modified light packing duties in 2010, his patient had a retained capacity for part-time modified and restricted duties in manual and pre-injury work.
59 Mr Wilde examined the plaintiff on 18 August 2013 and, by letter dated 1 October 2013, he advised the general practitioner, Dr Kazi in the following terms:[59]
[59]PCB 53.5-53.6
Ø he had viewed the 2010 MRI images and the report of the repeat imaging in May 2012, which he noted had also depicted a small annular tear at the L4/5 level;
Ø on examination, the plaintiff demonstrated good posture, reasonable lumber movements, normal straight leg raising, equal and symmetrical reflexes in the knee and ankle and, notwithstanding the plaintiff’s complaint of numbness over the left great toe, there were no specific neurological findings in the lower limbs;
Ø having noted Mr Han’s earlier recommendations, Mr Wilde concluded that spinal fusion remained an option, although the plaintiff was fearful of this procedure and rejected it immediately. In Mr Wilde’s opinion, the plaintiff was a good candidate for this surgery, which he believed would likely improve the left leg symptoms but not necessarily the back pain;
Ø the alternative to surgery was for the plaintiff to continue on his chosen course of conservative treatment, with the prospect that symptoms of chronic back pain and intermittent radiculopathy would slowly improve over a three to five year period.
60 Mr Wilde probably was not asked to comment on the plaintiff’s work capacity when reporting to the general practitioner.[60]
[60]TN3
61 In re-examination, the plaintiff told the Court his condition was now a “little worse” than it had been when he was performing modified duties for the defendant in 2010 and that: “(t)he leg pain is more constant than it was before and a little higher”).[61] He said he had no present intention of having the surgery recommended, due to a concern that this could lead to a worsening of pain.[62] Instead, the plaintiff intended to wait the three to five years over which Mr Wilde predicted pain could improve.
[61]TN 45
[62]TN 47
62 Notably, none of the clinical findings and medical opinion suggests any deterioration in the plaintiff’s condition. On the contrary, Mr Han’s report in March 2012 indicated some symptomatic improvement. Moreover, if Mr Wilde’s recent assessment is accepted, the plaintiff’s symptoms are likely to improve over the foreseeable future, with or without surgery.
The medico-legal evidence
63 Over a three month period the plaintiff was assessed for medico-legal purposes at the request of his solicitors by three practitioners: general surgeon, Mr Brearley on 19 July 2013;[63] occupational physician, Dr Sutcliffe on 7 August 2013;[64] and orthopaedic surgeon, Mr Kossmann, whose report was dated 3 September 2013.[65]
[63]PCB 61-68
[64]PCB 69-81
[65]PCB 82-90
64 Apart from Dr Sutcliffe’s indication that she had received Dr Davison’s reports and noted his opinions,[66] as far as I can tell none of these specialists specifically considered:
[66]PCB 77
· the plaintiff’s capacity to undertake further study/training to qualify for work in the IT/software industry;
· whether, there existed employment in this industry which constituted suitable employment for this plaintiff, given the nature of any restrictions applying to particularly his ability to sit or stand for prolonged periods;
· whether the positions identified in the ipar report and, subject to meeting the restrictions recommended by Dr Davidson, constituted suitable employment.
65 I have already mentioned some parts of Mr Brearley’s report in passing. When seen by Mr Brearley in July 2013, the plaintiff relevantly reported the following matters:
· without explaining what this work entailed, since returning from India in June 2013, he had been looking for suitable work;[67]
· he was not undergoing any physical treatments. His treatment regime only involved taking Panadeine tablets “a few times a week”[68] because he had developed considerable reflux as a result of taking anti-inflammatory medication. This evidence and other reports made by the plaintiff from time to time all suggested that he had developed an intolerance to some strong pain killing medications;
· back and leg pain persisted.
[67]TN 13
[68]PCB 62
66 Mr Brearley evidently read the reported results of the radiological material. In summary, he reported as follows:
· following an acute prolapse of the L5/S1 intervertebral disc with compression, the surgery in 2010 had initially produced a good result;
· the plaintiff was, in his words: “quite unfit for full-time unrestricted manual employment and he could not do his pre-injury work”;[69]
[69]PCB 64
· the plaintiff was only fit for light work (at that stage part-time work, four hours per day five days per week) not involving lifting beyond five kilograms and where the plaintiff was also able to avoid bending and stooping, long standing and long walking. This evidence is consistent with a retained capacity for part-time work up to 20 hours per week, subject to the restrictions nominated, none of which specifically restrict sitting times;
· the plaintiff’s prognosis was not good. In particular, the plaintiff’s capacity for light part-time work was likely to persist for the foreseeable future;
· in the event of worsening of symptoms, Mr Brearley could not rule out the possibility of further surgery. This evidence suggested that, unlike Mr Wilde, at the time of his examination, Mr Brearley did not consider the level of the symptoms with which the plaintiff presented warranted consideration of surgery;
· in addition to analgesic medication, the plaintiff needed to practice a home-based low impact exercise program and engage in a fitness program.
67 Dr Sutcliffe examined the plaintiff in the weeks preceding Mr Wilde’s examination. Among other things, the plaintiff reported the following matters:
· constant back pain which interrupted his sleep 2 to 3 times each night;
· pain in the low back, radiating to the left buttock, left calf and left foot;
· some pain in the area of the lumbothoracic spine;
· the intensity of pain in the leg and in the back was 7 to 9 and 8 to 9 respectively on the visual analogue scale;
· moderately severe pain “increasing with activity and also with movement, disrupting his sleep and altering his capacity to undertake activities of daily living in all spheres”;[70]
[70]PCB 78
· persistent pain in the left leg with sensory symptoms;
· tolerances for walking of up to 25 to 30 minutes, for sitting of up to 25 to 40 minutes, for standing of up to 10 minutes and for driving of up to 45 minutes;[71]
· moderating his use of medication to avoid gastric upset;
· using Panadeine medication, but avoiding the prescribed opiate medication Endone.
[71]PCB 73
68 Dr Sutcliffe concluded as follows:
· the plaintiff had sustained disc derangement at the L5/S1 level due to the incident;
· the plaintiff had no capacity for pre-injury duties and only limited capacity for alternate or modified duties into the foreseeable future (“He has no capacity for full-time unrestricted manual or pre-injury employment now or into the foreseeable future taking into account his age, background, education and prior work experience”;[72]
[72]PCB 78 and 80
· the plaintiff “may have some capacity for protected work, where he has the ability to undertake sitting, standing, moving and vary his tasks as required, with no lifting performed… these restrictions would not satisfy an employer in open employment and I believe that Mr. Singh could not achieve the level of reliability, productivity and efficiency required in open employment.”[73] I had some difficulty interpreting and applying this part of the doctor’s report, which suggested a restricted capacity for employment she thought would not satisfy an employer on the open market. In any event, it was not evidence the plaintiff sought to explain in the context of this case or on which he sought to rely;[74]
· “The physical effects of the lumbosacral spine injury restrict his capacity to undertake employment in the open labour market and he has no capacity for pre-injury or alternative employment”.[75] This very general statement appears to indicate a total incapacity for any existing employment, absent any discussion of matters such as the plaintiff’s capacity to undertake further study/training for alternative employment where appropriate restrictions are imposed and the plaintiff is at liberty to sit, stand and stretch at will;
· the plaintiff’s prognosis was poor given the earlier response to surgery, the small disc bulges identified at the L4/5 and L5/S1 levels and the evidence of some element of neuropathic pain.
[73]PCB 79
[74]TN 14
[75]PCB 80
69 Having read Dr Sutcliffe’s report more than once, the impression I gained was that this occupational specialist had reached a number of conclusions (there was total and permanent incapacity and no suitable employment for this plaintiff existed on the open employment market), without offering any satisfactory explanation as to why she believed this to be so and without disclosing her analysis, if any, of the plaintiff’s capacity to perform the employment to which Dr Davidson’s report referred. For these reasons, the doctor’s evidence was of less assistance to the plaintiff’s case than it might otherwise have been.
70 The salient features of Mr Kossmann’s report in September 2013 are summarised as follows:
· the plaintiff reported pain in the lumbar spine radiating into his left leg, difficulties sleeping sometimes (this evidence does not sit comfortably with Dr Sutcliffe’s report in which she recorded sleep disrupted by back pain 2 to 3 times nightly) and a walking capacity and sitting capacity of half an hour each;
· post-surgery, the current diagnosis involved “remaining L4/5 annular fissure with a small shallow broad-based disc bulge and an L5/S1 annular fissure and isometric left disc bulge contacting the ventral theca”;[76]
[76]PCB 84
· the plaintiff will require further treatment for ongoing pain issues in his lumbar spine and, if conservative measures (pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possible injection) fail, he could require further surgery, which may not rid the plaintiff of pain. This evidence suggests that Mr Kossmann envisaged more intensive conservative measures as a preliminary to any decision to undergo further surgery;
· there was a concern that the plaintiff was also vulnerable to further disc prolapse in the future, presumably at the L4/5 level;
· the plaintiff had no work capacity for his pre-injury duties as a labourer or for any physically demanding work, in particular, work where the plaintiff is forced to twist and bend his upper body, lift heavy items (in excess of five kilograms), kneel, squat, walk on uneven ground, walk up and down stairs, climb up and down ladders or walk up and down declines. This evidence tends to rule out even modified and restricted light duties in the plaintiff’s pre-injury work;
· the plaintiff, however, had a work capacity where he was able to sit most of the time and there was a possibility of performing stretching exercises.
71 As predicted by the plaintiff’s counsel in opening the plaintiff’s case, the defendant relied on Mr Kossmann’s evidence as indicative of a full-time capacity for sedentary work where the restrictions mentioned and the opportunity for the plaintiff to move and stretch, presumably at will, were incorporated. The plaintiff’s counsel nonetheless, submitted that, should the Court find the plaintiff capable of performing alternative suitable light work (presumably with or without further study/training), pain and disability precluded reliable attendance other than for, at most, part-time work.[77] In this regard, as mentioned, the plaintiff specifically relied on his earlier inability to sustain modified duties in his former work place very soon after surgery in 2010.
[77]TN 15-16
72 The difficulty I had with this aspect of the plaintiff’s case is that, unreliability in attendance for work was not discussed by any of the doctors, who identified a retained capacity for employment, nor was there discussion of any restriction of the plaintiff’s capacity to sit (where he was free to move and change his posture at will) whether working part-time or full-time. My impression of the plaintiff was that his subjective belief that he was totally incapacitated for all work prevented him from contemplating positions involving sedentary duties, even where these could accommodate the part-time hours and restrictions consistently nominated by most of the doctors.
73 Orthopaedic surgeon, Mr Dooley delivered the last of the medico-legal reports. He was retained by the defendant’s solicitors and examined the plaintiff on 12 December 2013.[78] On this occasion, among other things, the plaintiff reported the following matters:
[78]DCB 36-39
· constant lower back and left lower limb pain;
· aggravation of symptoms by prolonged sitting or standing;
· taking Panadeine Forte for pain relief;
· a walking tolerance of 20 to 30 minutes.
74 Mr Dooley relevantly reported as follows:
· the left-sided lumbosacral disc prolapse in December 2009 was work-related and accounted for the plaintiff’s lower back pain and persisting left-sided sciatica;
· the plaintiff’s symptoms and signs were consistent with a recurrent disc prolapse at the same level with the prospect of further fusion surgery;
· the plaintiff was drifting in the system and should be encouraged to return to a specialist in the treatment of the lumbar spine. This would, Mr Dooley felt, help establish a treatment plan;
· without explaining why this was so, the plaintiff would have difficulty working, as a Sales Representative, Packer and Courier but was, Mr Dooley said, fit for what he called: “passive security type work”.[79]
[79]DCB 38
75 Whilst I accept that Mr Dooley is a very experienced medico-legal specialist, having read his report, I could not be satisfied that, before making this report, Mr Dooley had analysed the tasks involved in the occupations identified in the NES Vocational Assessment report which occupational physician, Dr Davidson considered suitable employment, provided the restrictions were adhered to.
The onus of proof
76 On the evidence, the plaintiff has established a compensable lower back injury and likely permanent impairment of his physical capacity to undertake full-time unrestricted manual employment. The medical opinion, however, suggests a retained capacity, at the very least, for part-time employment for the foreseeable future. Whilst many of the doctors did not, as Mr Kossmann did, specifically discuss the plaintiff’s potential to engage in sedentary employment, which involved sitting with an opportunity to move and stretch, I infer from the reports of specialists, other than Dr Sutcliffe, that they considered the plaintiff physically capable of undertaking sedentary duties at least on a part-time basis.
77 It was submitted on behalf of the plaintiff that:
· where, as in this case, the plaintiff denied any physical capacity to perform security work, the defendant had not discharged the onus to show that such employment existed and, if it did, the nature of same;[80] and
· were the plaintiff found to be fit to perform passive security type work, on the evidence as a whole, it was unlikely that he could perform this or other sedentary employment full-time.
[80]TN 11-12
78 As mentioned earlier, the plaintiff carried the onus of proving the matters required by the Act, including proving on the balance of probabilities that no suitable employment existed in which he could earn 60% or more of the agreed pre-injury earnings figure. Whilst I acknowledge that from time to time circumstances do arise which shift the evidentiary onus to the employer, I was not satisfied that this had occurred in this case.
79 I do not propose to repeat the detailed list of tasks Security Officers may perform, as set out in the ipar vocational assessment report.[81] That report confirmed that in September 2011 full-time and part-time positions as a Security Officer had been advertised. The physical tasks listed included, for example, that an officer “may” provide armed escort for payroll delivery or armed protection for specifies organisations. Obviously, it is not enough to establish that a worker has a retained physical capacity to perform some of the tasks required in a particular job. To constitute suitable employment, the tasks required of the worker in any existing position or positions in security must be capable of accommodating the restrictions imposed.
[81]Exhibit D2, 120
80 I have, however, rejected the plaintiff’s submission that employment as a Security Officer was unsuitable because the list contained tasks which probably do not accommodate the medical limitations imposed. The plaintiff’s evidence was to the contrary, because he confirmed that he had applied (albeit unsuccessfully) for a position in security as a console operator and for another position with Corsec. Neither position required the plaintiff to provide armed services or to be licenced to do so. In short, some positions in security may be unsuitable due to their physical requirements, whereas suitable positions probably exist, which fit what Mr Dooley broadly described as “passive security type work”.
Current capacity and fitness for suitable employment
81 The clinical records attached to Dr Kazi’s final report list current medications, which include Endone, Panadeine Forte, Temaze and an over-the-counter reflux medication, Somac.[82]
[82]PCB 50-51
82 In his supplementary affidavit, among other things the plaintiff relevantly deposed as follows:[83]
“6. I still take medication, though I try not to take Panadeine Forte as it upsets my stomach.
7. I have constant pain in my low back which goes down my left leg to the bottom of my foot. I have restriction of movement and I have difficulty lifting, squatting and bending. I find I cannot sit or stand for long. I am unable to perform any manual work. I was hoping, after I obtained my Residency Certificate, I could perform a computer course. However, I would have difficulties operating a computer as I cannot sit for any lengthy periods of time. The pain is not getting any better, though in the future I may be able to perform some light part-time duties, say three to four hours by three days a week.”
[83]PCB 19.2-19.3
83 During re-examination, among other things, the plaintiff explained that sitting for 30 minutes or more over successive periods, even where there was an opportunity to stand and stretch, increased leg pain to the point where he required medication and rest. As mentioned, none of the doctors directly addressed the cumulative effect, if any, of sitting with breaks over say a 4 hour period or longer. On the contrary, their reports indicated a capacity for part-time light work, subject to the restrictions mentioned.
84 The plaintiff has not returned to employment. The plaintiff’s indication that, as yet he was not fit to return to any employment was contradicted by most of the specialist evidence and by the general practitioner’s evidence and the current Certificate of Capacity, the contents of which have been summarised above.
85 Based on the affidavit evidence the plaintiff, probably also believes that, even with further study/training for alternative employment, the physical restrictions on his ability to sit or stand for prolonged periods render him permanently unfit for any work in the future other than part-time light work of up to three to four hours per day, on three (alternate) days per week.
86 Cross-examination was mainly directed to exploration of the plaintiff’s capacity to undertake additional study and/or work in the community welfare sector, to work in security or to undertake additional study/training and/or work in the IT/software industry.
87 As to additional study or work in the community welfare sector, under cross-examination, the plaintiff gave further evidence to the following effect:[84]
[84]TN 20-25
· the Diploma completed at Cambridge International College, equipped him to work in aged care or childcare;
· he believed the duties performed in aged care were unsuitable because they included physical duties such as shopping for an aged person or providing assistance with household chores;
· with further study the Diploma qualification could be upgraded to a Bachelor in Welfare. However, the plaintiff, professed a lack of interest in further study or work in an area of work for which he agreed he was qualified;
· whilst the plaintiff had no interest in performing work in the Community Welfare sector, he conceded he had both the physical and intellectual capacity to pursue further study in this area.
88 On balance, allowing for the limited evidence available to me, I was satisfied that no suitable employment existed in the Community Welfare sector in which the plaintiff could earn 60% or more of the pre-injury earnings figure.
89 As to work in security, under further cross-examination, the plaintiff told the Court that he had not renewed his licence after it expired in 2013. However, the plaintiff said he had subsequently, unsuccessfully, advertised for part-time security work. Part-time jobs on alternate days were, he said, scarce (“There are almost none”[85]). If nothing else, this evidence helped establish that the plaintiff understood part-time employment in security existed, which could constitute suitable employment for him.
[85]TN 33
90 As mentioned, the jobs referred to in the NES Vocational Assessment report were, the plaintiff said, part-time, albeit for five days per week. Whilst it is likely that doctors had suggested to the plaintiff that he work part-time, whether this was for four hours on alternate days or on consecutive days each week, I concluded that the plaintiff’s subjective belief that he could not cope with part-time work was a factor in his failure to exercise the physical earning capacity identified by most doctors.
91 On the evidence, I was not satisfied that no suitable employment existed in security in which the plaintiff could earn 60% or more of the pre-injury earnings figure. If I am wrong in this conclusion, the plaintiff, nonetheless, failed to establish that further study/training was unlikely to improve his ability to undertake suitable employment in the IT industry, in particular in software development.
92 Under cross-examination, the plaintiff gave evidence to the following effect:[86]
[86]TN 18-25 and 41-44
· currently in Australia there are extensive opportunities to work in the field of software development;
· the Bachelor degree obtained by him in India was out of date for current work in this field;
· it remained his goal to complete a Master’s degree in computing with a view to qualifying to work in the software development field;
· a full-time course would take one and a half years study. The plaintiff’s uncertainty about whether this course was offered part-time, suggested he had not yet explored this option;
· he agreed that he was physically and intellectually capable of part-time study to complete a Masters in Computers;
· software development was largely sedentary office-based work, where in addition to using a computer, a software developer might attend meetings, communicate by telephone and write reports;
· in an office-based environment there would be opportunities to move around;
· he had not investigated the entry-level income earned by an individual working in software development. However, based on the earnings of a friend, he thought this could be around $800-$900 net for a 38 hour week, although the plaintiff stressed that his friend worked up to 50 hours per week;
· he appeared to accept that the wage in software development would grow quickly within a couple of years after commencing work in the industry;
· whilst he resisted the proposition that he would be able to cope with what the plaintiff agreed was largely sedentary software development work at a desk, he nonetheless conceded that, he could perform this work on a part-time basis, four hours a day on alternate days three days per week;
· he agreed that during the vocational assessment conducted by ipar they discussed and he had indicated some interest in a Sales Representative role in the IT industry(“Yes. They said there can be some sitting jobs in the sales as well”);[87]
· he appeared to agree with the proposition that work in sales in an Apple store at Chadstone not involving heavy lifting and with an opportunity to sit could constitute suitable employment for him and, further that he was prepared to try this sort of employment for four or five hours per day on alternate days;
· whilst selling computers and computer related paraphernalia was the sort of job the plaintiff agreed he could do, based on his experience when performing modified light packing duties in 2010, the plaintiff was doubtful that his condition and pain would allow him to perform even four hours a day on three alternate days per week.
[87]TN 41
93 During re-examination, the plaintiff explained to the Court that the salespersons he observed working in Apple stores had been standing, walking and helping people, all of which might mean that work in sales is not suitable if the duties are focussed on standing and walking.
94 As far as I can tell, the plaintiff has not investigated his opportunities in IT/software development. Whilst it is understandable that he remains concerned about the effects of regular employment on his back condition and pain levels, the weight of the medical evidence favours the view that he has a retained capacity for at least part-time work.
95 I was not satisfied that the plaintiff had proved, on the balance of probabilities, that with further study/training no suitable employment, as defined by the Act, existed in this field in which he could earn 60% or more of his pre-injury earnings in the IT/software industry.
96 Accordingly, applying the test under the Act:
· I find that the plaintiff has not proved that at the date of hearing he has a loss of earning capacity of 40% or more and will after the date of hearing continue permanently to have a loss of earning capacity productive of financial loss of 40% or more;
· the plaintiff did not satisfy me that further study/training was unlikely to improve his capacity for employment to a level that would take him over the statutory threshold;
· the plaintiff did not satisfy me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, his loss of earning capacity is fairly described as more than significant or marked and being at least very considerable.
97 Accordingly, the plaintiff is not entitled to leave to commence proceedings to recover damages for loss of earning capacity and the application is dismissed.
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