Sinisa Jokanovic v Colonial Farm (Australia) Pty Ltd and Gallagher Bassett Services Workers Compensation Vic Pty Ltd
[2010] VCC 1565
•15 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-10-00092
| SINISA JOKANOVIC | Plaintiff |
| v | |
| COLONIAL FARM (AUSTRALIA) PTY LTD | |
| AND | |
| GALLAGHER BASSETT SERVICES | Defendants |
| WORKERS COMPENSATION VIC PTY LTD |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 and 12 October 2010 |
| DATE OF JUDGMENT: | 15 November 2010 |
CASE MAY BE CITED AS: | Sinisa Jokanovic v Colonial Farm (Australia) Pty Ltd & Gallagher Bassett Services Workers Compensation Vic Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1565 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s lumber spine – functional factors affecting the plaintiff’s presentation – whether the pain and suffering consequence was more than “significant” or “marked” or at least “very considerable”– whether the plaintiff suffered the requisite economic loss
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Trevor S Monti | Clark Toop & Taylor |
| Gino Pierorazio | ||
| For the Defendants | Alan W Middleton | Wisewould Mahoney Lawyers |
| HER HONOUR: |
Introduction
1 By originating motion filed on 12 January 2010 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
2 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's lumber spine by reason of discal injury.[1]
[1] Transcript ("TN") 20.
3 The first defendant manufactures processed foods. In 2005 the plaintiff was employed by the first defendant as a casual, and from June 2006, as a full- time labourer and Team Leader. His work involved stacking and moving heavy boxes of meat and shifting and manoeuvring heavy ingredients and items of produce around the factory. During cross-examination the plaintiff agreed that his work also required him to read, write and count in English so as to assess and record the materials he used.[2]
[2] TN 26.
4 The plaintiff earned approximately $687 gross per week, overtime at $27 per hour for some 5 hours each week and a weekly shift allowance of $103.
5 It was common ground that the plaintiff probably suffered injury to his lower back in the course of his employment from approximately November 2006 when he experienced the onset of and thereafter worsening symptoms of back pain. The plaintiff had some time off work and from March 2007 he performed light duties. However, the plaintiff said that worsening back pain eventually forced him to cease working from May 2007.
6 At hearing the plaintiff agreed that he was offered and unsuccessfully attempted a number of return-to-work programs involving primarily office work to which restrictions were applied.[3] As it turns out his last return to work on modified duties in June 2008 did not proceed because the work days offered by the employer clashed with a pain management course to which the plaintiff had been referred by his treating neurosurgeon, Prof. Teddy.[4]
[3] TN 45.
[4] TN 46-47 and Plaintiff's Court Book ("PCB") 113-115.
7 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and any loss of earning capacity consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lumbar spine are more than "significant" or "marked" and at least "very considerable".
8 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".
9 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
10 In this case, where there is a probable pre-existing condition affecting the lumbar spine, that is, retrolisthesis which involves the backward slipping of the L5 disc,[5] I must consider what the evidence disclosed as to the prior condition of the plaintiff's spine.
[5] See the radiological materials at PCB 29-32.
11 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which if exercised would result in his earning more than 60% of his pre-injury earnings determined in accordance with s134AB(38)(f) of the Act.
12 The onus rests on the plaintiff 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.[6]
[6] s134AB(19)(b).
13 As from 1 July 2010 the Act redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
14 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The Areas of Dispute
15 The defendants conceded that in the weeks prior to November 2006 in the course of the plaintiff's employment the plaintiff suffered work-related lower back injury for which compensation was paid.
16 Nevertheless, based on the absence of significant radiological findings and the equivocal clinical findings on which the plaintiff relied to support the alleged pain and symptoms the defendants contested:
•
whether the plaintiff had established an organic cause for his alleged pain and symptoms and, in this instance, separated any functional from any physical consequences;
• the claimed total incapacity for all employment; •
in circumstances where the defendants accepted that he was unfit to return to heavy or manual work, whether on balance the plaintiff had proved an inability to be retrained or rehabilitated;
•
whether when compared with other cases in the range of possible impairments, the alleged consequences were more than significant or marked, or at least very considerable.[7]
[7] TN 21.
The Evidence Called and Tendered
17 The plaintiff deposed to the accuracy of his affidavit sworn on 1 April 2009 and his supplementary affidavit sworn on 3 September 2010. He was cross- examined at length.
18 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed and to which, with the leave of the Court, copy return-to-work documents and copy income tax return summaries for a comparable employee were added.
19 The defendants called no evidence. They tendered their Court Book from which a number of documents had been removed. The plaintiff also relied on the medical reports tendered by the defendants from specialist in occupational medicine, Dr Poppenbeek and orthopaedic surgeons, Mr Battlay and Mr Ian Jones.
The Plaintiff’s Background
20 The plaintiff is 37 years of age. He was born in Yugoslavia where, by age 18, he had completed 12 years of primary and secondary schooling. In the five years prior to migrating to Australia in 1996 aged 23, the plaintiff said he had not worked due to the war.
21 It appears that after swearing his affidavit in April 2009 the plaintiff married on 17 July 2009 and he and his wife, who is working, live with her parents. One consequence of the plaintiff's marriage is that he is no longer entitled to payments from Centrelink.
22 After arriving in Australia and before it closed its plant the plaintiff spent six years working at Four N Twenty Pies performing labouring work, followed by a short period in building and tiling work.
23 In his affidavit the plaintiff said that he was able to read English, although his spelling was not very good. However, in re-examination he told the court that when he arrived in Australia he could understand but was unable to speak "much" English. If this were so, to his credit at hearing the plaintiff demonstrated a good command of spoken and written English, despite on occasion needing clarification from counsel of a word or expression used in their questions.
24 Indeed, consistent with his good working knowledge of the English and Serbian languages it appears that in or around January 2009, some months before the plaintiff swore his affidavit, with a view to working as an interpreter in these languages, he sought accreditation from the National Accreditation Authority for Translators and Interpreters.
25 According to the plaintiff this work represents suitable alternative employment because it would allow him to sit and stand at will.[8] As the WorkCover insurer had refused funding, to achieve this goal the plaintiff said he borrowed $580 from a friend and, on 13th February 2009, he sat the Paraprofessional Interpreter Test in English/Serbian. Apparently this 45 minute test is all that is required to qualify as an interpreter.[9]
[8] PCB 23.
[9] TN 36.
26 As the correspondence and test result sheet confirm the plaintiff failed the test, achieving a score of 57.5, where a total minimum of 70 was required.[10]
[10] Exhibit D "1”.
27 The code comments contained in the result sheet indicate, amongst other things, a greater deficiency in the plaintiff's interpretation of English to Serbian than the reverse. Nevertheless, despite the opportunity to do this, the plaintiff has not sought to review the result or sit another test. Both in his supplementary affidavit and during cross examination the plaintiff said that, whilst he wanted to try to qualify again, he had not completed the form because he felt he had to improve his English through study and he was unable to afford to fund another attempt.[11]
[11] PCB 27 and TN 34-38.
28 Consistent with his professed ambition to become an interpreter, during cross examination the plaintiff said that he sometimes attends the library, he borrows DVDs with subtitles and he reads books in English, both at home and at the library.[12]
[12] TN 41, 53 and 57.
29 Apart from seeking to qualify as an interpreter at hearing the plaintiff confirmed that he had not sought any other type of employment which met the restrictions on lifting weights, bending or twisting imposed by the general practitioner, Dr Luka who from approximately March 2007 has treated the plaintiff and provided certificates.
30 However, the plaintiff also said that because he would like to try and work in the health and safety or worksafe environment, in September 2010 he had applied to attend a Work, Health and Safety course which was subsequently cancelled due to lack of clients. Nevertheless, the plaintiff agreed that new courses were available in the future and that, should he qualify, this sort of work was something he would like to try part-time - "A few days a week may be, up to 20 hours, maybe less".[13]
[13] TN 54-56.
The treatment and early diagnoses
31 As I have already mentioned, it appears that notwithstanding time off work, physiotherapy and painkilling medication in March 2007 the plaintiff continued to report "low back pain and stiffness with radiation down his left leg and to a lesser degree on the right side".[14] This appears to have prompted a general practitioner, Dr Habib to order a CT scan of the plaintiff's lumbosacral spine. On 1 March 2007 the scan returned what the radiologist concluded was a "normal study" whilst also noting that:
"Minimal retrolisthesis of L5 on the upper sacrum is seen. The lumbar discs have a normal appearance throughout without disc bulge or protrusion at any level. No canal stenosis. Nerve roots exit normally throughout. No bony abnormality. Sacrum and sacroiliac joints also normal."[15]
[14] PCB 33.
[15] PCB 29.
32 On 28 March 2007, after the plaintiff had submitted his claim for compensation, the defendants sought the opinion of general practitioner, Dr Hajicosta. On examination this doctor found a normal range of movement of the plaintiff's back and legs, without any tenderness or neurological symptoms to suggest bony or nerve injury. Having also viewed the CT scan result Dr Hajicosta concluded that the plaintiff’s symptoms were consistent with soft tissue injury. He recommended a worksite review of plaintiff duties, avoidance of heavy lifting or pulling and that the plaintiff continue physiotherapy, use heat packs, exercise and consider a trial of anti-inflammatory medication.[16]
[16] PCB 33.
33 A report from a physiotherapist in Epping indicates that during April 2007 the plaintiff reported only temporary relief from physiotherapy and lumbar traction having presented with a "full lumbar range of motion and pain at the end of his
range of motion, in forward bending and backwards. On palpation he was tender throughout the lumbar spine, lumbar level 1 to 5".[17][17] PCB 44.
34 It appears that in the same period the plaintiff also commenced hydrotherapy and for a couple of months he sought treatment from a chiropractor. At hearing the plaintiff indicated that, other than a further short period of physiotherapy in mid-2007, he no longer receives physiotherapy treatment. He said that currently he attends at his local gym 3 to 4 times per week where he has hydrotherapy or does gym work.
35 It also appears that the plaintiff cannot tolerate some medications including strong pain killing medication and NSAIDs. As a result he manages what he described as "constant pain" with tramadol drops, 100 mg twice daily and Panadol once or twice a week. More recently, the plaintiff said that Dr Luka had also prescribed weekly Norspan patches, a morphine preparation for pain control.[18]
[18] PCB 25-26 and TN 31 and 56.
36 The plaintiff’s first and only referral by Dr Luka for assessment and treatment by a specialist was to neurosurgeon, Prof Teddy at the Royal Melbourne Hospital in 2007.
37 Other than some short correspondence directed to the insurer and Dr Luka, Prof Teddy's only report, addressed to the insurer, is dated 26 March 2008.[19] In this report Prof Teddy explained that he first examined the plaintiff on 8 June 2007, at which time the plaintiff described a gradual onset of work- related injury involving stiffness in his lower back and intermittent pains radiating down both legs, more on the left than right.
[19] Defendants' Court Book ("DCB") 26-31.
38 On examination Prof Teddy noted, amongst other things, muscle spasm in the lumbar spine, a very stiff back and reduced forward flexion, bilateral straight- leg raising and left knee jerk. Accordingly, notwithstanding the absence of overt radiological pathology, Prof Teddy arranged for MRI scan of the plaintiff's lumbar spine, intending he said to refer the plaintiff for pain management, should this scan prove unhelpful in identifying a cause for the plaintiff's reportedly severe back pain.
39 The report of the MRI scan study conducted on 9 July 2007 stated as follows:
"There is subtle retrolisthesis of L5 on S1. There is otherwise preservation of normal vertebral body alignment, height and bone marrow signal. There is some mild desiccation of the L5/S1 disc. There is no disc protrusion at this level. No foraminal narrowing or nerve root compression.
The conus medullaris terminates at L2/3, and has a normal appearance. The nerve roots of the cauda equina appear normal.
There is no spondylosis.
The paravertebral soft tissues have a normal appearance.
….. There is some minor desiccation of the L5/S1 disc and minimal retrolisthesis at this level. No disc protrusion or nerve root compression seen."[20]
[20] PCB 30.
40 Prof Teddy's interpretation of the film was consistent with this report in as much as he too noted only minor desiccation of the L5-S1 disc, without neural compromise. In these circumstances, Prof Teddy concluded that the plaintiff's back pain was mechanical in nature, that is partly discogenic and partly of facet joint origin and he referred the plaintiff for pain management at the Royal Melbourne Hospital's Pain Management Services.
41 The first review at Pain Management Services took place on 6 September 2007. On examination it was noted that:
• the plaintiff could only bend forward hands to knees but rose from that position quite well; • neurological examination of the plaintiff's lower limb was normal; • straight leg raising was 50-60° bilaterally which caused pain in the back of his thighs and low back; and • palpitation revealed a generally tender low back with maximal tenderness both left and right at the level of L2/3. 42 At the time of this review it seems that the results of the first MRI scan were known. In any event, an assessment of his suitability for a pain management program was recommended and the plaintiff was advised to take 2 paracetamol tablets four times daily and 10 mg of Amitriptyline at night. It seems that the preliminary assessment for these services was not completed until 4 April 2008.
43 Prof Teddy only reviewed the plaintiff once on 14 March 2008, some months before the plaintiff’s participation in the pain management program between 24 June and 14 August 2008. He reviewed the plaintiff for the purpose of preparing a report for the insurer.
44 Relevantly on this occasion Prof Teddy observed elements of pain-related behaviour. For instance, he said that on examination the plaintiff indicated lumbar spine pain to either side of the midline from around L4 to the sacrum. The plaintiff could only bend to touch his knees, all back movements were extremely limited, extension was reported as particularly painful and straight leg raising was apparently 45° bilaterally. These findings notwithstanding, Prof Teddy noted that the plaintiff: ".. was able to sit bolt upright with his hips flexed
and knees fully extended. The lower limb reflexes were generally quiet, but symmetric. The plantar responses were downgoing and there were no
abnormalities of power or sensation." [21]
[21] DCB 30.
45 Accordingly, whilst the treating neurosurgeon accepted that the plaintiff's mechanical back pain may have been work-related, in the absence of what he described "as convincing major clinical findings, evidence of clinical pain-
related behaviour and MRI/CT findings of only modest degenerative changes
in the lumbar spine"[22] he clearly had difficulty accepting that the plaintiff was incapacitated to the extent alleged. In Prof Teddy’s opinion the plaintiff was then capable of any form of more sedentary employment.
[22] DCB 31.
46 When Dr Poppenbeek examined the plaintiff at the request of the insurer on 17 September 2007, amongst other things, he found a mildly diminished left ankle reflex. Subsequently, on 10 December 2007 he also conducted a worksite assessment.[23] Nevertheless, allowing for both the absence of pathology and what this occupational specialist thought was possible abnormal illness behaviour Dr Poppenbeek, who had difficulty arriving at a precise diagnosis, said that he preferred a diagnosis of "disc strain" to frank disc protrusion.
[23] DCB 1-7.
47 Subject to conducting a worksite inspection Dr Poppenbeek also concluded that the plaintiff was fit to a return to office work involving supervisory and clerical duties where his working hours were gradually increased.
48 It appears that during the worksite assessment in December 2007 the plaintiff told Dr Poppenbeek that the light duties he had previously attempted without success had increased his pain and stiffness. Dr Poppenbeek said that he found this an odd response given that during three hydrotherapy sessions each week the plaintiff performed more active physical work by abducting his arms whilst using plastic dumbbells, without reporting any increase in his pain levels. In any event, I think it clear that by then Dr Poppenbeek felt significant non-organic elements were having an impact on the plaintiff's presentation.
49 In December 2007, notwithstanding the plaintiff's concern about travelling in a car for 15 minutes to attend work, Dr Poppenbeek was of the view that the plaintiff was fit for an immediate return to suitable duties consisting of office- based, self-paced work involving checking e-mails and completing work orders. In reaching this conclusion the doctor also took into account relevant factors such as an offer from the employer to assist with transport, the plaintiff's familiarity with the paperwork processes and the plaintiff's use of a calculator to add figures in his previous role as a team leader.
50 As I have already mentioned it seems that after the worksite assessment the plaintiff was offered the same return-to-work plan commencing during June 2008 to which his doctor eventually agreed. This was after Dr Luka in a strongly worded correspondence on 19 February 2008 remonstrated with the insurer for acting prematurely by sending the plaintiff "back to sit in an office
for two hours aggravating his back pain and impacting on him psychologically
with unrelated work duties to waht (sic) he is familiar with", whilst in the same letter informing them that the plaintiff was "not qualified for any other type of
work by the way of education or training, he has done manual labouring jobs for all of his employment career and to do office duties might require a long
time of training when his back pain settels (sic)."[24]
[24] PCB 35-37.
51 Unfortunately, as I have already mentioned, due to a clash between the dates for this approved return to work plan and the dates allocated for the pain management program, the plaintiff was sent away without being offered alternative dates.[25]
[25] PCB 113-115.
52 Prior to these events, on 26 January 2008, orthopaedic surgeon, Mr Schofield examined the plaintiff at the request of his solicitors. At the time, amongst other things, he had a copy of Dr Poppenbeek's report, the MRI scan and, whilst he is not a treating surgeon, x-rays ordered by him on the same day. These x-rays included erect functional views that demonstrated, so Mr Schofield said, minimal loss of disc height at the lumbosacral level (he measured this at 4 mm), with no evidence of instability. Mr Schofield felt that these functional views were nonetheless compromised by the plaintiff's stiffness.
53 Relevantly, notwithstanding Mr Schofield's comment that his clinical findings were similar to those reported by Dr Poppenbeek, I note that Mr Schofield found reduced sensation over the outer left thigh and calf, that neurologically the plaintiff's lower limbs were normal and that there "may" have been a mild reduction of the left ankle jerk.
54 However, despite some at best equivocal clinical findings and no current evidence of prolapse on MRI scan, Mr Schofield concluded the plaintiff’s symptoms were consistent with disc injury and minor radiculopathy caused by heavy repetitive work straining the posterior wall of the lumbosacral disc.
55 In other words, Mr Schofield accepted that the current radiological evidence of degenerative change at the lumbosacral level did not support this diagnosis. He nonetheless based his diagnosis on the plaintiff's reports and his clinical findings and he set out to establish the accuracy of this by recommending a repeat MRI scan to look for evidence of progressive change, such as a prolapse at this level, for the treatment of which surgery is an option.[26]
[26] PCB 64-66.
56 As previously mentioned, following preliminary assessment of the plaintiff, an eight-week multidisciplinary treatment and rehabilitation plan for pain management was established by the Rehabilitation Pain Clinic. Pain focus and pain behaviour were clearly prominent amongst the issues this program sought to address.[27] As we know the plaintiff attended the program and in his affidavit he deposed to this having assisted him with depression caused by injury-related pain and restrictions for which he also took antidepressant medication.
[27] DCB 32-41.
57 The clinic’s report following review in September 2008 requires consideration, because in this report it was noted that the plaintiff’s progress was minimal, his participation was poor, he had difficulty incorporating the suggested changes and he had not felt that the pain management principles applied to him. Relevantly, on examination the clinic also recorded limited forward flexion, no extension or straight leg raise, a normal neurological examination "from motor and reflex point of view" and in conclusion a "very guarded" prognosis.
58 The plaintiff's last review at the Rehabilitation Pain Clinic was on 4 December 2008 when, on examination, it was noted that the plaintiff "ambulated unaided,
had globally reduced strength in the left leg, and reflexes were intact, and
active straight leg raise was to 70° on the left." According to this report the plaintiff was discharged because the clinic team was of the view that there was nothing further it could offer the plaintiff.[28]
[28] PCB 47.
59 Notably, throughout this period the plaintiff has continued to consult his treating general practitioner, Dr Luka who, without offering a specific diagnosis has accepted that his patient is suffering from low back and leg pain, the worst being his back pain which the doctor described in his report as: "constant and boring in nature."
60 Having read the bundle of reports submitted by Dr Luka between 19 February 2008 and 30 June 2010,[29] amongst other things, I concluded that, other than some earlier clinical findings of tenderness in the lumbar spine, maximal tenderness at the L2/3 level, very limited straight leg raising to 50-60 degrees[30] and his patient's reports to him, the general practitioner's understanding of the diagnosis and the plaintiff's clinical condition was mostly informed by specialist opinions and, more recently, by Mr Schofield's opinion.
[29] PCB 39-43.
[30] PCB 35 and 39.
61 Moreover, I formed the view that when in February 2008 he told the insurer that office duties did not constitute suitable return to work duties, the information the doctor had concerning the plaintiff’s skills and his previous duties was probably not as comprehensive as the background information to which Dr Poppenbeek had regard following the worksite assessment in December 2007 and before he recommended the return to work plan.
62 In any event, Dr Luka arranged for a further MRI scan of the plaintiff's lumbar spine which on 12 June 2008 provided the following reported result:
"Clinical Notes
Mild back pain radiating to the left lower limb.
Report
Minor grade 1 retrolisthesis of L5 on S1. The vertebral body heights and marrow signal are normal. Disc desiccation without significant loss of disc space height at L5-S1 noted. No conus lesion. Aorta of normal calibre. No paravertebral soft tissue mass.
L1-2 to L3-4 Levels
Unremarkable.
L4-5 Level
Minor broadbased disc bulge. Minor bilateral neural foraminal stenosis, without neural compromise. Central canal and subarticular recesses adequate. Minimal bilateral facet joint degeneration.
L5-S1 Level
Minor broadbased disc bulge. Minor bilateral neural foraminal stenosis. Central canal and subarticular recesses adequate. Minimal bilateral facet joint degeneration.
CONCLUSION
1. Lower two level disc degeneration.
2.
At L4-5 and L5-S1, there is minor bilateral neural foraminal stenosis, without neural compromise. Minimal bilateral facet joint degeneration also seen at both these levels.
3. No central canal stenosis."[31] [31] PCB 31.
The radiology and medico-legal opinions from 2009 to date
63 In March 2009 orthopaedic surgeon, Mr Battlay assessed impairment of the plaintiff's back for the purpose of a section 98C claim made under the Act. He did not have an up-to-date MRI study. Relevantly, on this occasion, as with Dr Luka and the assessor from the Rehabilitation Pain Clinic he reported that the plaintiff described continuous pain in his lower back at the L2/3 level, also claiming that this radiated more to the left than to the right leg.
64 On examination Mr Battlay found, amongst other things, restricted flexion to 60°, extension "virtually absent", left lateral flexion uncomfortable at two thirds of the expected range and right lateral flexion full and less painful than the movement to the left. Notably, he found no evidence of sciatic nerve root irritation or lower limb neurological loss and whilst accepting that, consistent with minor radiological abnormalities of the spine, a degenerative disc was causing mechanical low back pain, this independent assessor also reported what he deemed to be "a significant element of nonphysical symptom
production here."[32]
[32] DCB 8-11.
65 When neurosurgeon, Mr D'Urso and general surgeon specialising in orthopaedics, Mr Brearley examined the plaintiff at the request of his solicitors on 7 March 2009 and 22 April 2009 respectively they both apparently had available to them medical reports from the general practitioner, Mr Schofield and Dr Poppenbeek, as well as some of the radiological material.[33]
[33] PCB 58-60 and 52-57.
66 Relevantly, Mr D'Urso's examination of the plaintiff revealed, amongst other things:
• normal power in the plaintiff lower limbs; • slight wasting of the left quadriceps; • an absence of left knee and ankle reflexes; • slight alteration of sensation on the lateral aspect of the plaintiff's left leg; • straight leg raising of 45° on the right and 30° on the left where both were limited by back pain; • that when flexing his spine the plaintiff was unable to extend past neutral; and • tenderness in the mid-line of the lower lumbar spine. 67 When Mr Brearley examined the plaintiff some six weeks later he thought that the plaintiff presented with "a very serious, concerned and slightly depressed countenance." On examination, Mr Brearley noted:
• some tenderness over the lumbar spine; •
quite marked limitation of movements, flexion limited to 50°, extension to 0°, lateral flexion to 20° on both sides, rotation to the left to 20° and to the right to 10°;
• quite marked muscle spasm accompanying these movements; • straight leg raising to 50° on both sides; •
a report from the plaintiff that there is some loss of sensation over the outer side of the calf; and
• weak but equal reflexes on both sides. 68 Based on his discussion of the radiological material I concluded that Mr D'Urso probably relied on the reports of these films to which other medical reports referred and, in doing so, he misconstrued the date of the x-ray arranged by Mr Schofield in January 2008 and, more significantly, the results of the CT scan obtained on 1 March 2007. For instance, Mr D'Urso wrongly thought that this earlier scan, which had indicated minimal retrolisthesis of the L5 but otherwise returned a normal study, had also shown a minor L5-S1 disc prolapse.
69 Of course, Mr D'Urso also compared the reports of the MRI studies, after which he attributed the minor disc prolapses noted in the most recent study at the L4-5 and L5-S1 levels to disc degeneration. In his view the plaintiff's employment may have contributed to the progression of this degeneration at the lumbosacral junction. However, Mr D'Urso also indicated that the retrolisthesis was probably a pre-existing congenital condition which in his opinion may have predisposed the plaintiff to the development of discogenic back pain and facet joint pain "due to altered biomechanics of the lumbosacral junction as a result of performing more arduous physical activities."
70 Mr Brearley based his conclusions in part on his analysis of the radiological material. For instance, having viewed the straight x-rays he concluded that the pre-existing minimal retrolisthesis at the L5/S1 level by itself was not responsible for the plaintiff's symptoms. However, having also viewed the MRI images and the accompanying reports Mr Brearley explained his interpretation of the film and his views in the following way:
"MRI shows well marked degenerative changes in the L5/S1 disc which is quite dehydrated in both the MRI series. The second MRI does show some degenerative changes also in the L4/5 disc. The films do show some neural foraminal stenosis but there is no frank evidence of compression of the L5 or S1 nerve roots on these films. However his leg pain does indicate that there is nerve root irritation.
The degenerative changes in the L5/S1 and to a lesser extent the L4/5 disc have no doubt been worsened by the extraordinary heavy work he had to do. This work would have caused some further damage to the interior of the disc, i.e. some intradisc rupture. There is minimal bulging at these levels but the changes are sufficient to account for his pain which is organic in nature.
There are no doubt some depressive elements in his presentation but basically the cause of his pain is organic and demonstrable on the MR images."[34]
[34] PCB 56.
71 Mr Brearley’s conclusions were similar to those reached by Mr D'Urso, in as much as he diagnosed mechanical lumbar pain due to two level disc degenerative changes resulting from some internal disc disruption and pre- existing minimal retrolisthesis at the L5/S1 level. Whilst Mr Brearley acknowledged that there was no confirmatory evidence of radiculopathy he nevertheless accepted that nerve root irritation, that is left L5 radiculopathy was responsible for the plaintiff's leg pain relying it seems on the reports of pain and the most recent radiological study obtained in June 2008 evidencing, as he confirmed, some minor neural foraminal stenosis.
72 When Mr Schofield re-examined the plaintiff in June 2009 he had available, in addition to reports from the general practitioner, the repeat MRI scan as well as further x-rays including erect functional views ordered by him on the same date.
73 This time Mr Schofield's findings on examination included:
• tenderness in the lower lumbar region; •
flexion restricted to 30°, no ability to extend, straight leg raising restricted to 40° on the left and 70° on the right;
•
altered sensation over the lateral calf on the left side and less severe changes in the lateral thigh;
• weakness of dorsiflexion and eversion of the left great toe; • reduced left knee jerk compared with other reflexes; and • 2 cm wasting of the left calf and thigh, with normal pulses in both feet.[35] [35] PCB 68.
74 Clearly, there was no evidence of reduction in or loss of the left ankle jerk on this occasion or, it seems, on his final examination of the plaintiff in September 2010.
75 In June 2009, after comparing the x-ray films taken in the erect position, Mr Schofield concluded that over the past 18 months the disc height had reduced, such that there was approximately 1/3 disc height at the lumbosacral level compared with the L4-5 level, an event he thought indicated a probable increase in the degree of compression at the lumbosacral level.
76 Accordingly, whilst this surgeon readily acknowledged that the MRI scan had not revealed any significant prolapse, he felt that the desiccation shown at the lumbosacral level was consistent with the distribution of pain in the plaintiff's back and legs. He said that he took into account a slow worsening of the plaintiff's condition and the evidence of radiculopathy which had not been a problem when he last examined the plaintiff in January 2008. Mr Schofield again recommended a repeat MRI scan and, should that fail to reveal the cause of the pain, a lumbar discography. These investigations he anticipated would eventually confirm the need for surgery to relieve the symptoms probably caused by the damaged lumbosacral disc.
77 Orthopaedic surgeon, Mr Ian Jones first examined the plaintiff at the request of the defendants’ solicitors on 18 November 2009.[36] At the time, amongst other things, the plaintiff described symptoms of constant pain in his lower back, indicating this to be at the L4/5 level and he reported "constant" numbness to the back of his right thigh and calf.
[36] DCB 12-17.
78 On examination Mr Jones found that:
•
the plaintiff's range of lumbo-sacral flexion was limited to one third of normal;
• no extension was possible beyond the neutral position; •
straight leg raising was to 60° on both left and right sides and appeared to aggravate the plaintiff's back;
•
neither knee-jerk reflex could be elicited but both ankle jerks were present and equal; and
•
sensory testing revealed subjective symptoms of diminished sensation in the lower left leg below the plaintiff's knee and postero left thigh.
79 It appears that Mr Jones had the advantage of Mr Schofield's opinion, the plain x-rays he obtained in June 2009 and the CT scan result and MRI studies and reports. Essentially, Mr Jones accepted that there was radiological evidence of minimal retrolisthesis at the L5/S1 level without evidence of any neural compression. Having viewed "again" the most recent MRI study and report, he noted disc degeneration and some minor bulging at the L5/S1 level as well as some very mild changes at the L4/5 disc level, without evidence of any disc prolapse.
80 Relevantly, Mr Jones accepted that the heavy work performed by the plaintiff had aggravated a degenerative lower back condition and that he presented with symptoms and signs of a disrupted lumbo-sacral disc. It appears that as part of his endeavour to "elucidate" the plaintiff's claimed back injury Mr Jones also relied on the presence of retrolisthesis, a condition he said is usually seen in situations of facet joint changes and disrupted discs in the lumbar spine. In other words, the presence of this condition helped him diagnose a likely cause of lower back pain and restrictions.
81 Without noting obvious physical or psychological issues Mr Jones nevertheless recommended assessment by a psychologist or psychiatrist. I think it clear from reading his report, however, that at the time, without further investigation such as an MRI-scan in the standing position or a discogram, he like Mr Schofield could not be certain about the extent of what Mr Jones "believed" was a lumbo-sacral disc disruption.
82 Accordingly, by the end of 2009, despite the best efforts of the medico-legal specialists and multiple radiological investigations, there remained some degree of uncertainty about the nature and extent of any work-related injury to the plaintiff's lumbar spine. In addition, there was no radiological evidence to confirm suspected nerve compression which could explain the complaints of a leg pain and the clinical signs which might help establish the presence of radiculopathy were somewhat equivocal. For instance, neither Mr Schofield nor Mr Jones found any loss or reduction in the left ankle jerk reflex.
The Radiology and Medico-Legal Evidence in 2010
83 Following a further MRI study obtained by Mr Schofield on 7 April 2010 all of the orthopaedic and neurological medico-legal specialists re-examined the plaintiff. I formed the view that, as submitted by the defendants, there are important differences between the reported results of this study and the study obtained in June 2008. These differences argue against the earlier reported evidence of bilateral neural foraminal stenosis and undermine any reliance on this radiology by, for instance, Mr Brearley to help attribute the reported leg pain to probable radiculopathy. The results of the most recent study were reported as follows:
"Clinical Notes
Lumbar back pain. Left S1 sciatica. Previously noted degenerative changes at
L4/5....
Report
There is minimal retrolisthesis of L5 on S1. Alignment otherwise maintained. No spondylolisthesis. Normal vertebral body height and signal. The cord terminates at L2 with normal appearance of the conus.
L1/2, L2/3, L3/4, L4/5
The disc signal and height are within normal limits. The central canal and neural foramina remain capacious. Mild degenerative facet joint changes at L5/S1.
L5/S1
There is mild degenerative disc signal with minimal disc bulge. The central canal remains capacious. No traversing or exiting nerve root compromise. Mild facet joint degeneration..
Conclusion
Mild degenerative disc disease at L5/S1. No neural compromise."[37]
[37] PCB 32.
84 Against a background of reportedly persistent back and leg pain and a slowly deteriorating condition, Mr D'Urso re-examined the plaintiff on 4 June 2010. The plaintiff wore a lumbar brace. Mr D'Urso noted, amongst other things:
• global weakness in the plaintiff’s left leg, particularly movements of the ankle grade 4; • symmetrical reflexes at the knees; • an absence of left ankle reflex; • downgoing plantar responses; • altered sensation in the lateral aspect of the left leg to the calf and foot; • straight leg raise positive at 30° and 60° in the left and right leg respectively; • an ability to stand on his heels and toes and flex his spine but only poorly; • an inability to come within 60 cm of touching his toes or to extend past 10°; and • mobile and non-tender hips.[38] [38] PCB 61-62.
85 Essentially, Mr D'Urso confirmed his earlier diagnosis namely a degenerative L5-S1 disc to which to some extent the plaintiff's employment may have contributed and pre-existing retrolisthesis, without evidence of neural compromise.
86 In this report Mr D'Urso clearly felt the need to draw attention to the presence of non-organic factors when he also observed that the plaintiff's "disability is
substantially greater than what I would expect judging from information provided and I suspect there is a degree of non-organic and functional overlay
affecting his presentation."
87 In response to correspondence from the plaintiff’s solicitors requesting clarification of his opinion that their client had no capacity for any type of employment, "based purely on the organic features of his condition," by letter dated 21 September 2010 Mr D'Urso responded as follows:
"Sinsa does appear to suffer from what appears to be organic incapacity. It is very difficult to separate the extent of this from his overall clinical presentation. Based on the organic features of his condition alone, I do not believe Sinsa has any capacity to return to preinjury employment or have any capacity for any type of physical or manual labour. Given his limited education, English language skills and employment history; I would consider Sinsa to have no capacity for employment in general and will have no capacity for any type of employment into the foreseeable future."[39]
[39] PCB 63.
88 All of the specialists have agreed that the plaintiff's back condition precludes a return to his pre-injury employment and any type of heavy physical or manual labour. However, Mr D'Urso does not appear to have accepted as other specialists such as Prof Teddy, Mr Brearley and Mr Jones have that in this case the plaintiff’s current command of English and his employment history are not a bar to the plaintiff retraining to work in sedentary occupations.
89 Indeed, on the evidence before me I was not persuaded that by reason of any work-related injury or impairment the plaintiff is permanently, that is for the foreseeable future, unable to retrain or perform suitable sedentary employment. I will explain this finding more fully in due course.
90 Mr Brearley re-examined the plaintiff on 18 June 2010.[40] His clinical findings were consistent with those reported by Mr D'Urso, although Mr Brearley also noted slight wasting, that is a difference of .5 cm in the plaintiff’s left calf and 1 cm in his left thigh. However, in this case the reported results of measurements of any wasting do not provide a reliable indication of probable radiculopathy because of the conflicting reports received. For instance, in June 2009 and again in September 2010 Mr Schofield measured 2 cm wasting of the left calf and thigh, whereas in October 2010 Mr Jones found no measurable difference.
[40] PCB 48-51.
91 Whilst appearing to agree with the reported results of the most recent film, which speaks of “capacious” neural foramina, Mr Brearley nevertheless appears to have either relied on an inconsistent finding in the earlier study or, having viewed this film, relied on his own interpretation to conclude that clinical findings comprising loss of left ankle jerk and sensory loss over the ankle, left leg and foot were secondary to left exit foraminal stenosis.
92 Bearing in mind the difficulty all of the specialists faced in reaching a supportable diagnosis, Mr Brearley's opinion that the plaintiff suffers from work-related mechanical lumbar pain due to degenerative disc changes and a probable internal disc disruption at the L5/S1 level sits comfortably with most of the other specialist opinions. However, due to his unexplained reliance on a finding not reported in the latest MRI study, and notwithstanding his clinical findings which could also flag left-sided radiculopathy, I am less able to accept as soundly-based Mr Brearley's further opinion that the plaintiff also suffers from intermittent left sciatica.
93 As with many of the other specialists, and notwithstanding his belief that there is evidence of radiculopathy, Mr Brearley clearly accepts that the plaintiff has a physical capacity for employment, albeit limited to administrative type work and subject to restrictions on bending, stooping and lifting and on standing and walking.
94 Mr Schofield re-examined the plaintiff on 31 August 2010.[41] Relevantly, he expressly agreed with the report accompanying the most recent MRI study, whilst also noting that further x-rays with direct views taken on the same day as his examination of the plaintiff now show a 5 mm measured retrolisthesis at the lumbosacral level.
[41] PCB 71-74.
95 On examination, Mr Schofield found:
• the plaintiff again leaned forward when standing; • the plaintiff was unable to arch his back at all; • the plaintiff was tender at the lumbosacral level; • the plaintiff was unable to extend forward; • spinal flexion was 30° and other movements were restricted, straight leg raising was 30° on the left and 50° on the right; • weakness of dorsiflexion and eversion of the left foot; • 2cm wasting of the left calf; and • normal reflexes and normal other power, although he also found non- dermatomal sensory changes affecting the left leg. 96 Mr Schofield's opinion and diagnosis remains unchanged. As is evident from his earlier reports, he has approached his assessment of the plaintiff's condition without questioning the basis of any non-organic symptoms, such as the non-dermatomal sensory changes affecting the plaintiff left leg. Rather he has adopted the stance that only a functional MRI scan, which is available in Sydney, will provide a proper diagnosis of a probable swollen posteriorly protruding lumbosacral disc. In these circumstances, whilst he believed that the plaintiff was presently unfit to work, Mr Schofield declined to offer any assessment of the plaintiff's capacity to resume his previous occupation in the future.
97 As it turns out Mr Jones was the last specialist to re-examine the plaintiff prior to the hearing. On 5 October 2010 he reported that:
• the plaintiff indicated the site of his back pain was maximal at L3/4 level; •
the plaintiff stood in a semi-flexed posture leaning forward in a position of some 20° of flexion from which position he was able to achieve 40° of lumbosacral flexion but not fully extend his lumbar spine;
• knee jerks were present and equal; •
ankle jerks were present and appeared equal, although as he indicated in his report in an effort to confirm these findings Mr Jones repeated these tests and in doing so he acknowledged the possibility of a slight reduction in the left ankle jerk reflex compared with the right;
• power in both limbs was normal; •
there was no measurable difference between the bulk of the thigh and calf muscles; and
•
straight leg raising was possible to 80° on both sides and appeared to aggravate the plaintiff’s back pain rather than any leg pain symptoms.
98 As Mr Schofield also found during his examination in September 2010 the plaintiff reported non-dermatomal sensory changes in his left leg. For instance, Mr Jones noted subjective complaint of paraesthesia affecting the whole of the plaintiff’s left lower limb to the level of his groin, which did not correspond to any peripheral nerve or dermatome pattern. In addition, the plaintiff complained of paraesthesia extending to the left anterior abdominal wall, reinforcing as it did the non-anatomical distribution of the plaintiff's reported paraesthesia. The paraesthesia symptom and its distribution, apparently involving the whole of the plaintiff’s left leg, were Mr Jones said suggestive of a functional component in the plaintiff's presentation.
99 Mr Jones does not mention the most recent MRI study, although he did view the plain x-rays taken on 31 August 2010 which he thought were within normal limits. In contrast to Mr Schofield's measurement of 5 mm Mr Jones only observed 1 or 2 mm of subluxation between the L4 and L5 discs, to which he attributed no significance. If Mr Jones' measurement is correct it is unlikely that, firstly, there has been any progression of subluxation as the earliest radiological investigations reported minimal retrolisthesis and, secondly, progression of subluxation has increased decompression at the lumbosacral level.
100 Mr Jones found no evidence of disc prolapse, either clinically or radiographically, although he has accepted a likely work-related disc disruption. However, despite his attempts to confirm this Mr Jones was not satisfied that there was evidence of sciatica or radiculopathy. Relevantly, he also thought that with retraining the plaintiff would have a capacity for suitable work of a clerical nature where he was not required to engage in heavy lifting, pushing or carrying.
The Compensable Injury
101 In this application, there is evidence of pre-existing retrolisthesis at the lumbosacral level and in early 2007 some mild desiccation of the L5/S1 disc. The MRI imaging obtained between July 2007 and April 2010 relevantly indicates some progression of degeneration in this disc, such that there is now evidence of a disc bulge. This is in addition to the evidence of facet joint degeneration.
102 There is no current clinical evidence from the plaintiff's treating general practitioner or evidence from any treating specialist. Nevertheless, the evidence and the opinions of the orthopaedic surgeons summarised above have satisfied me that the heavy work performed by the plaintiff in the period alleged probably led to discal injury, particularly of the lumbo-sacral disc, and that this injury is responsible for some of the reports of ongoing pain and restriction in the plaintiff's lower back. I have said "some" because there is also radiological evidence of degeneration at the L4/5 level as well as indications given by the plaintiff during various examinations of pain at the L2/3 level.
103 On the evidence I could not be satisfied that there had been any appreciable progression of subluxation at the lumbosacral level. It follows from this that other than an aggravation injury of the already degenerate disc, on the evidence I have not found proof to the requisite standard of acceleration of the pre-existing condition or because of this of increasing decompression at this level.
104 In the absence of any current radiological support for this, I found the evidence concerning the presence of radiculopathy or intermittent sciatica at best equivocal.
105 These circumstances coupled with consistent evidence that functional factors were probably affecting the plaintiff's presentation left me unsatisfied on the balance of probabilities that the compensable work-related injury to the plaintiff’s lumbar spine also involved a component of nerve root compression.
106 These matters notwithstanding, I find that the compensable injury probably continues to contribute to both pain and suffering and pecuniary loss consequences, although in view of the presence of functional factors, the extent of these consequences requires careful consideration.
107 For instance, whilst there is evidence of probable permanent injury-related impairment of the plaintiff's lumbar spine (that is permanent in the sense that it is likely to last for the foreseeable future), having regard to all of the evidence I could not be satisfied that any disc disruption in the lumbar spine is causing disabling pain and paraesthesia in the plaintiff's lower limbs or that this is a factor in restricting his physical capacity for work or his lifestyle, domestic and social activities.
The Pain and Suffering Consequences Alleged
108 The pain and suffering consequences were generally described in the plaintiff's affidavits[42] with some elaboration provided during cross-examination and re-examination. In as much as it is possible to determine that the injured disc will continue for the foreseeable future to make a material contribution to these consequences, they include as follows:,
[42] In his first affidavit at paragraphs 7, 8, 10, 11 and 13 and in the supplementary affidavit at paragraphs 3, 4, 6 and 7.
•
ongoing lower back pain, worsened by walking, sitting or standing for lengthy periods. Pain disturbs his sleep and the plaintiff requires daily painkilling medication;
• the prospect of surgical intervention; •
the loss of the opportunity to work in heavy labouring or physical occupations;
•
restrictions on the plaintiffs recreational activities such that he can no longer play indoor social soccer with his friends. Whilst he agreed that he still sometimes plays pool, a game he used to play weekly prior to his injury and last played a couple of months before the hearing, the plaintiff also said that he was no longer very good at this game. For instance, the plaintiff said he must now bend his knees;[43]
•
ongoing restrictions on his activities and dependence on others such as his wife for assistance. For instance, the plaintiff said that he has problems putting on his socks and as a result normally he cannot wear socks. However, with his wife’s help he was able to wear them to court during the two-day hearing;[44]
•
a loss of personal fitness previously developed by the plaintiff attending gym from time to time, as well as enjoying swimming on occasions;
•
an inability to drive and walk for lengthy periods and run as he used to "up to 10 kilometres per day"; and
•
the need to sometimes wear a back brace originally recommended by his occupational therapist.
[43] TN 40 and 57.
[44] TN 57.
109 Based on all of these matters the plaintiff has satisfied me that having compared this with other cases in the range of possible impairment of the lumbar spine the pain and suffering consequences of his work-related disc injury are more than "significant" or "marked" and at least "very considerable".
110 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
111 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of any capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act, the plaintiff is required to prove that at the date of hearing, his loss, as measured by reference to the statutory formula is 40 per centum or more. In addition, he must establish that after the date of hearing a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
112 The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing ("the after-injury earnings") and 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 his earning capacity had the injury not occurred ("the without-injury earnings").
113 The income compared is gross income from personal exertion, expressed at an annual rate.
114 A statement of calculation of the plaintiff's loss of earning capacity was submitted to the Court toward the end of the hearing. The plaintiff submitted that he is permanently incapacitated for earning in suitable employment. The plaintiff gave his gross annual income from personal exertion for the three financial years before the injury as $46,669 in 2003, $21,485 in 2004, $8,502 in 2005 and $16,031 in 2006. For the 3 financial years after November 2006, commencing from 2007 he said that he earned $43,818 and he received a combination of centrelink and compensation payments of $17,803 and $16,545 in 2008 and 2009 respectively.
115 However, the plaintiff also relied on the gross earnings of a comparable employee supplied by the defendants. As at 30 June 2008 and 2009 this employee earned $54,221 and $57,466. For the purpose of this proceeding I have inferred that $57,466 was the amount the plaintiff was capable of earning from personal exertion and that under s134AB(38)(f) this amount probably most fairly reflects his earning capacity had the injury not occurred.
116 Notwithstanding his claimed total incapacity, the plaintiff also submitted that any residual earning capacity exercised by him in suitable employment would not produce more than 60% of his without injury earnings, namely a gross annual sum of $34,480 or $663 per week.
117 In this case, I must consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the definition of "suitable employment" elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in him exceeding the statutory threshold of 60% of gross income earned from personal exertion.
118 As from 1 July 2010 the following definition of "suitable employment" was substituted by the amended Act:
“suitable employment, in relation to a worker, means employment in work for which
the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of
capacity supplied by the worker; and(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning
process; and
(vi) any occupational rehabilitation services that are being, or have been,
provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and (ii) the work or the employment is of a type or nature that is generally available in the employment market.”
119 Allowing for the second reading speech, it is clear that Parliament[45] has moved to abrogate the effect of the decision in Smorgon Tube Mills v Majkic, which held that in determining what the worker was capable of earning in "suitable employment", regard was to be had to the realities of the labour market, and loss of earning capacity was to be determined having regard to work that was "generally available in the employment market."[46]
[45] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, page 4625, Mr Holding, Minister for Workcover.
[46] Smorgon Tube Mills v Majkic (2008) 21 VR 193,196.
120 As I have mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of his lumbar spine permanently restricts employment options. The determination of this issue also takes into account the reasonableness of his attempts, if any, to participate in rehabilitation or retraining. He must also prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
121 The injury to the plaintiff's lumbar spine has led to a significant and it seems permanent impact on his ability to work in any occupation involving heavy manual work. The plaintiff’s skills and work experience in Australia have involved him in this type of work, although the plaintiff appears to have also had some additional responsibility for counting and recording the materials used in his pre-injury role as a team leader and labourer.
122 In my view the submission by the plaintiff's counsel to the effect that I should conclude from the plaintiff's first unsuccessful attempt to obtain accreditation that employment as an interpreter does not amount to suitable employment is at variance with the plaintiff's evidence. The plaintiff is a young man who, with further study and access to funds, believes himself capable of enhancing his already good English language skills to gain alternative employment. For example, the plaintiff considered that working as an interpreter would allow him some flexibility in sitting and standing.
123 The submission made also ignores the opinion of the specialists Dr Poppenbeek and Prof Teddy and, more recently, Mr Brearley and Mr Jones, all of whom foresaw a future where the plaintiff could exercise a work capacity in sedentary occupations. However, it seems that with some prescience, the treating neurosurgeon, Prof Teddy also predicted that a return to the workforce was unlikely until the plaintiff's pain-related behaviour was addressed.
124 Based on all the evidence the plaintiff has satisfied me that he has no current capacity to return to his pre-injury employment which was consistently identified as heavy manual work and that his experience, skills and work history currently probably only qualify the plaintiff for occupations involving heavy and manual work.
125 However, the plaintiff did not satisfy me that by reason of any combination of factors including injury-related incapacity, his background, age, level of education or English-language skills he is unable to be retrained or rehabilitated. Accordingly, the plaintiff has not satisfied me that he has a permanent loss of earning capacity of 40% or more as measured in accordance with s134AB(38)(f) of the Act and he has not satisfied me that he is entitled to leave in respect of loss earning capacity.
Orders 126 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendants in respect of pain and suffering damages only for injury to his lumbar spine suffered from approximately November 2006 in the course of his employment with the first defendant. I will hear from the parties as to the making of appropriate orders.
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